This Participation Agreement (the “Agreement”) is made between Beyond Driven, LLC (“Beyond Driven” or the “Company”), and Participant (“Participant” or “You”).
In order to protect you and safeguard your privacy during BEYOND365 by Beyond Driven, Coach Guided Program, you agree to the following:
I. BEYOND365 BY BEYOND DRIVEN, COACH GUIDED PROGRAM FEES
A. As consideration for BEYOND365 by Beyond Driven, Coach Guided Program, you agree to pay Beyond Driven (1) payment of three hundred and sixty five dollars ($365.00). This represents a discount from the full price amount of six hundred and ninety seven dollars ($697.00) per month.
(“BEYOND365 by Beyond Driven, Coach Guided Program Fee”).
You agree that BEYOND365 by Beyond Driven, Coach Guided Program Fee is only refundable if you do not feel happily in control of your relationship with alcohol after you have completed the full thirty (30) Day program. In order to be eligible for a full refund, you must attend ALL sixteen (16) group call sessions, four (4) private 1-on-1 sessions, and outline your full participation in writing to BEYOND365 by Beyond Driven, Coach Guided Program at firstname.lastname@example.org within seven (7) calendar days of your completion of the first thirty days. You represent and warrant that payment of BEYOND365 by Beyond Driven, Coach Guided Program Fee will not place a significant financial burden on you or your family.
II. TERMINATION OF BEYOND365 BY BEYOND DRIVEN, COACH GUIDED PROGRAM
A. Beyond Driven may terminate this Agreement upon breach of any provision of this Agreement by Participant. If Beyond Driven terminates this Agreement pursuant to this Section II(B), you will not receive a refund for any monthly payments previously made, but all future payments will be stopped immediately upon termination of this Agreement.
B. Upon termination of your participation in BEYOND365 by Beyond Driven, Coach Guided Program, whether by your choice or at the determination of Beyond Driven, you will no longer have access to coaching calls. Coaching calls are only available to active, paying participants in the program.
III. BEYOND365 BY BEYOND DRIVEN, COACH GUIDED PROGRAM CODE OF CONDUCT
A. You agree to fully abide by the following BEYOND365 by Beyond Driven, Coach Guided Program Code of Conduct:
1. Your participation is voluntary and you agree that any action or inaction you take as a result of the information or coaching provided is your responsibility.
2. Be coachable and share all relevant information with your coaches.
3. You understand that your well-being is your responsibility and you agree to care for your well-being and to not engage in any act of self-harm or self-injury.
4. You understand that your participation and how you conduct yourself in the program impacts other program participants, and you agree to be courteous of other participants and respect their privacy rights by holding what they share, say, or disclose as strictly confidential, in the absence of their express consent and permission to do otherwise.
5. You agree that if at any point during your participation, you experience a need for outside resources from other qualified professionals, you will seek out and employ these resources and be in communication with your coaches about it.
6. Do not engage in conduct that is detrimental (as determined by Beyond Driven in its sole discretion) to other program participants or Beyond Driven.
7. You understand that you are requesting educational information, materials, and coaching from Beyond Driven, and you agree that the nature of your participation is educational.
8. Comply with all laws, regulations, and rules.
A. You agree, at all times during BEYOND365 by Beyond Driven, Coach Guided Program and thereafter, to hold in the strictest confidence, and not to use, except to the extent necessary to participate in BEYOND365 by Beyond Driven, Coach Guided Program, and not to disclose to any person, firm, corporation, or other entity, any Confidential Information (as defined below) that you obtain or access from Beyond Driven. You further agree not to make copies of such Confidential Information except as authorized by Beyond Driven.
B. You understand that “Confidential Information” means information and physical material not generally known or available outside Beyond Driven and information and physical material entrusted to Beyond Driven in confidence by third parties. Confidential Information includes, without limitation:
1. Technical data, trade secrets, know-how, research, product or service ideas or plans, ideas, software codes and designs, developments, inventions, sketchbooks, notebooks, workbooks, journals, processes, formulas, techniques, designs and drawings, videos, program methods and materials, or other business information disclosed to you by Beyond Driven either directly or indirectly, whether in writing, electronically, orally, or by observation. You agree Confidential Information includes all BEYOND365 by Beyond Driven, Coach Guided Program methods and materials in any format.
C. Your agreements in this Section IV are intended to be for the benefit of Beyond Driven and any third party that has entrusted information or physical material to Beyond Driven in confidence.
D. This Agreement is intended to supplement, and not to supersede, any rights Beyond Driven may have in law or equity with respect to the protection of trade secrets or confidential or proprietary information.
V. BEYOND DRIVEN’S INTELLECTUAL PROPERTY
A. Beyond Driven is and shall be the sole and exclusive owner of all rights, titles, and interest in and to all Beyond Driven intellectual property and proprietary rights therein.
1. You agree that “intellectual property” means all developments, concepts, methods, designs, ideas, know how, improvements, inventions, trade secrets and/or original works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. You understand this includes, but is not limited to, all BEYOND365 by Beyond Driven, Coach Guided Program information, documents, videos, materials, titles, images, and logos. You agree you do not have the right to copy, modify, make derivative works of, use, sell, lease, rent, import, or otherwise distribute Beyond Driven’s intellectual property.
A. You agree not to violate BEYOND365 by Beyond Driven, Coach Guided Program participants’ privacy, personality, and publicity rights by using or disclosing their personal information. You understand and agree “personal information” means any information relating to an identified or identifiable natural person, including but not limited to, name, date of birth, gender, address, contact details, username, demographic information, photographs, likeness, and voice recordings.
VII. MEDICAL DISCLAIMER
A. You agree that Beyond Driven is not comprised of licensed medical or psychological professionals and the information presented in BEYOND365 by Beyond Driven, Coach Guided Program is for informational and educational purposes only and is not intended to diagnose, treat, cure, or prevent any disease. The information in BEYOND365 by Beyond Driven, Coach Guided Program is in no way intended as medical advice, substance abuse counseling, psychological counseling, or as a substitute for medical or any other professional counseling. The information should be used in conjunction with the guidance and care of your physician. Consult your physician before beginning this program as you would any medical, dietary, or fitness program. You agree your use of the information in BEYOND365 by Beyond Driven, Coach Guided Program is at your own risk and that Beyond Driven does not guarantee results.
VIII. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEYOND DRIVEN HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO BEYOND365 BY BEYOND DRIVEN, COACH GUIDED PROGRAM, BEYOND365 BY BEYOND DRIVEN, COACH GUIDED PROGRAM COURSE METHODS AND MATERIALS, BEYOND DRIVEN PRODUCTS AND SERVICES, AND ANY OTHER SUBJECT MATTER OF THE AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF CONTENT, RESULTS, LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, AND CORRESPONDENCE TO DESCRIPTION.
IX. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY OR ANY FAILURE OF ESSENTIAL PURPOSE, IN NO EVENT SHALL BEYOND DRIVEN OR ANY OF ITS RELATED PARTIES BE LIABLE TO PARTICIPANT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST BUSINESS, AND LOST OPPORTUNITIES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (INCLUDING BUT NOT LIMITED TO BEYOND365 BY BEYOND DRIVEN, COACH GUIDED PROGRAM, BEYOND365 BY BEYOND DRIVEN, COACH GUIDED PROGRAM METHODS AND MATERIALS, AND BEYOND DRIVEN PRODUCTS AND SERVICES), WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHER THEORY OF LIABILITY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF BEYOND DRIVEN OR ANY OF ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to indemnify, defend, and hold harmless Beyond Driven (together with its agents, other independent contractors, stockholders, members, employees, directors, officers, and attorneys, collectively "Indemnified Parties”) from and against any and all losses or liabilities (including attorneys’ fees) you may suffer or incur as a result of your breach or alleged breach of the Agreement.
XI. APPLICABLE LAW
This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. By purchasing BEYOND365 by Beyond Driven, Coach Guided Program, the parties consent to the jurisdiction of the State of California.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS WE AND YOU HAVE AGAINST EACH OTHER ARE RESOLVED. SECTION XII CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT REQUIRES YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND LIMITS YOUR RIGHT TO SEEK RELIEF BY JURY TRIAL OR CLASS ACTION.
XII. AGREEMENT TO ARBITRATE
This section applies to any dispute EXCEPT IT DOESN’T INCLUDE A DISPUTE RELATING TO CLAIMS FOR INJUNCTIVE OR EQUITABLE RELIEF REGARDING THE ENFORCEMENT OR VALIDITY OF YOUR OR BEYOND DRIVEN’S INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between you and Beyond Driven concerning this Agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
A. Notice of Dispute
In the event of a dispute, you or Beyond Driven must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute via email to: email@example.com. Beyond Driven will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and Beyond Driven will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or Beyond Driven may commence arbitration.
B. Binding Arbitration
If you and Beyond Driven don’t resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. The dispute shall be settled by binding arbitration in accordance with the commercial arbitration rules of the JAMS. The arbitration will be conducted in San Diego, California, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by California law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. Any and all legal, accounting, and other costs, fees, and expenses incurred by the prevailing party shall be borne by the non-prevailing party.
C. Prohibition of Class and Representative Actions and Non-Individual Actions
You and Beyond Driven agree that either may bring claims against the other only on an individual basis and not as part of any purported class or representative action or proceeding unless both you and Beyond Driven agree otherwise. The arbitrator may not consolidate or join more than one person’s or party’s claims and may not preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s claim(s). Any relief awarded cannot affect other Beyond Driven customers.
XIII. FORCE MAJEURE
In the event Beyond Driven is unable to perform its obligations under the terms of this Agreement because of acts of God (including, but not limited to, severe acts of nature or weather events including floods, fires, earthquakes, hurricanes, or explosions), strikes or labor disputes, war, riots, acts of terrorism, epidemics, pandemics, acts of governmental authorities (including but not limited to government directives, expropriation, condemnation, and changes in laws and regulations), interruptions, loss, or malfunctions of utilities, communications, or computer (software and hardware) services, or other causes reasonably beyond Beyond Driven's control, Beyond Driven shall not be liable for any costs or damages resulting from Beyond Driven's failure to perform its obligations under the terms of this Agreement, or otherwise, from such causes.
XIV. MISCELLANEOUS PROVISIONS
A. Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of Beyond Driven.
B. Sole Agreement. This Agreement, including the Exhibits hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
C. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on the signature page or as subsequently modified by written notice.
D. Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflict of laws.
E. Severability. This Agreement shall constitute the entire agreement between you and Beyond Driven. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Beyond Driven’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
F. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
G. Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT.
THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF