TERMS OF SERVICE

INTRODUCTION

The Company provides the Mindrazr online application that provides guided audio and video exercises for mental and physical health and wellbeing. Use of Mindrazr is subject to these Terms of Service.

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1. DEFINITIONS
The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) ABN : means Australian Business Number.

(b) Agreement : means the agreement formed between the Users and the Company under, and on the terms of, these Terms of Service.

(c) Business Day : means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.

(d) Company : means Mindrazor Pty Ltd ABN 38 605 775 095.

(e) Contributor : means a registered User that provides Session Content to Mindrazr.

(f) Contributor Agreement : means a separate agreement between a Contributor and the Company that determines the basis on which Session Content may be made available via Mindrazr.

(g) Corporations Act : means the Corporations Act 2001 (Cth).

(h) Customer : means a registered user of Mindrazr that uses the features associated with a Customer account and is responsible for paying any Fees.

(i) EHR (Electronic Health Record) : means the record of a Listener’s Health Information in Mindrazr.

(j) Fee : means a fee charged by the Company for use of Mindrazr.

(k) GST : has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(l) Health Information : has the same meaning as in the Privacy Act 1988 (but generally refers to information about the physical or mental health, injury or a disability of a User at any time).

(m) Intellectual Property : means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.

(n) Listener : means a registered User that listens to music or participates in a Session.

(o) Mindrazr : means:
i The Mindrazr mobile application; and/or
ii The Mindrazr website operated by the Company accessible at http://www.mindrazr.com

(p) Premium Content : means Session Content for which additional Session Fees are payable to access.

(q) Privacy Act : means the Privacy Act 1988 (Cth).

(r) Privacy Policy : means the Company’s privacy policy as updated from time-to-time, which can be found at http://www.mindrazr.com/public/privacy

(s) Service Agreement : means a separate service agreement between a Customer and the Company, for additional services or content to be provided by the Company.

(t) Session : means a guided exercise session for mental health, physical health and wellbeing consisting of Session Content and music delivered via Mindrazr.

(u) Session Content : means any audio, video or written content that provides exercise instructions to a Listener for use in a Session.

(v) Session Fee : means an additional Fee payable to access Premium Content.

(w) Subscription Fee : means a Fee charged by the Company for use of Mindrazr on a periodical basis.

(x) Tax Invoice : has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(y) Terms of Service : means the terms and conditions of using Mindrazr, as updated from time-to-time, which can be found at https://mindrazr.com/docs/terms

(z) TPS : means an online third-party Contributor with whom a User holds an account.

(aa) Tracker : means the personal analytics features within Mindrazr that track a Listener’s progress before and after a Session.

(bb) User : means any registered Customer, Listener or Contributor that uses Mindrazr.

(cc) User Content : means images, video, audio, information, documents or other data that is uploaded or input into Mindrazr by the User or that forms part of the User’s Intellectual Property.

2. USING MINDRAZR
General

To use Mindrazr, the User must log into Mindrazr and have set up their account.

The User agrees that all use of Mindrazr is subject to these Terms of Service. If a User does not accept any terms of this Agreement, the User must immediately cease using Mindrazr.

Mindrazr is a platform designed for the delivery of Sessions by suitably qualified Contributors.

The Company does not provide personalised physical training, mental health or wellbeing services, and is not intended as a substitute for consultation with a qualified professional in the relevant field.

Anyone over the age of 18 may use Mindrazr. People under 18 years of age must not use Mindrazr without their parent or legal guardian’s consent.

The Customer shall be responsible for:

Paying the Fees for using Mindrazr; and

Each Listener or Contributor’s use of Mindrazr that the Customer authorises.

In default the Customer will be the Listener or Contributor that creates a Mindrazr account.

A Customer may set any additional rules that apply to a User authorized by that Customer’s use of Mindrazr. In the event of a conflict between such rules and this Agreement, this Agreement shall prevail.

Features

Mindrazr may allow a Customer to:

Create and manage accounts for either Listeners or Contributors in accordance with the Customer’s subscription or Service Agreement; and

Such other features made available to a Customer by the Company from time-to-time, or subject to a Service Agreement.

Mindrazr may allow a Listener to:

Listen to music;

Access and participate in Sessions;

Create catalogues of preferred Sessions;

Answer questions to track progress via the Tracker, creating an EHR; and

Grant other Users access to their EHR.

Mindrazr may allow a Contributor to:

Create an manage a Contributor profile;

Upload Session Content;

Manage whether Session Content is free or Premium Content;

Receive payment for Listener’s accessing the Contributor’s Premium Content (subject to a Contributor Agreement being in place);

View the EHR of each Listener that grants the Contributor access; and

Such other features made available by the Company from time-to-time.

Sessions

A Listener may preform exercises to improve their physical health, mental health and/or general wellbeing by selecting a Session within Mindrazr.

The Listener is responsible for ensuring that they correctly follow the instructions for each exercise in a Session. The Company shall not be responsible for any injury, death or damage to property caused by a Listener failing to correctly follow instructions.

Session Content is the responsibility of the Contributor that makes it available for Sessions via Mindrazr.

Mindrazr shall provide information on each Contributor that provided the Session Content to Mindrazr.

Except where Mindrazr provides the Session Content, Mindrazr accepts no responsibility for the Session Content provided by a Contributor.

The terms of access to any Premium Content, including any Session Fees, shall be described in Mindrazr. The Listener must accept the terms of accessing Premium Content prior to being granted access.

Mindrazr is intended to supplement personal consultations and classes. Sessions are not intended to replace personalised consultations with suitably qualified professionals in the fields of physical health, mental health or wellbeing.

If a Listener experiences any pain or discomfort while participating in any physical exercise, while following any instructions in a Session, the Listener is advised to immediately cease the exercise and consult a doctor or physiotherapist (as may be appropriate).

Music

A Listener may listen to music by either:

Accessing the music files stored on their mobile device; or

Streaming the music made available by the Company via Mindrazr.

The Listener is responsible for ensuring that the Listener has all necessary rights to the music that is accesses via Mindrazr including files stored on their mobile device.

Subject to the Listener’s subscription, Mindrazr may make additional music available to the Listener via the Mindrazr streaming service. The Company shall only make music available to be streamed by the Listener, that the Company has acquired the necessary rights to.

Access to Mindrazr’s streaming services is subject to payment of all Fees.

Tracker

Prior to commencing, and immediately following, a Session the Listener shall be asked a series of questions in order to determine the Listener’s progress via the Tracker.

By answering Tracker questions, the Listener creates an EHR that tracks their health and progress via Mindrazr.

The Listener is responsible for the accuracy of all answers that they provide to the Tracker.

The Listener shall have control over their EHR and may grant other Users access to their EHR, including to Contributors for the purpose of receiving personalised recommendations of Sessions from that Contributor.

The Company may provide the Customer that pays for the Listener’s account with access to the Listener’s EHR, if the Listener grants the Company authority to do so.

The Company may provide aggregated de-identified data on users connected to the Customer’s account, collected from the Tracker to the Customer.

The Company shall maintain all Health Information contained in an EHR in accordance with the Privacy Policy.

Each User shall be responsible for maintaining and using the Health Information contained in each EHR that a Listener grants access to, in compliance with the Privacy Act. The Listener is advised to check the User’s privacy policy (if applicable) prior to granting access to their EHR.

The Company is not responsible for the accuracy of the information contained in an EHR.

3. LISTENER TERMS

The Listener agrees and accepts that:

The Listener uses Mindrazr at its own risk. To the extent permitted by law, under no circumstance will the Company be liable for any injury, illness, death or damage to property resulting from the use of Mindrazr. It is the Listener’s responsibility to follow the instructions in a Session and correctly perform each exercise;

The Listener indemnifies the Company against all costs, claims damages and expenses for any injury or damage caused to the person or property of a Third Party as a result of the Listener’s use of Mindrazr;

Mindrazr may share the EHR and other personal information of the Listener with any other User authorised by the Listener;

Any information shared by Mindrazr with an User authorised by the Listener may be retained by that User for the purpose of updating their administrative records;

The Customer that pays for the Listener’s Mindrazr account may impose additional rules that apply to the Listener’s use of Mindrazr. The Listener and the Customer shall be responsible to each other subject to those rules, and the Company accepts no responsibility in relation to them;

Any consent made by a Listener through Mindrazr is valid and binding unless and until revoked by the Listener, and other Users may rely on a consent made through Mindrazr without any need to further verify the veracity of that consent;

All information about a Listener is used and controlled by the Listener, Customer or Contributor, not Mindrazr;

All information input to Mindrazr about a Listener is provided with that Listener’s consent;

Each User authorised by the Listener to receive the EHR and other personal information may have its own privacy policy governing access to this information.

4. CONTRIBUTOR TERMS OF USE

In order to use Mindrazr as a Contributor, the Contributor warrants that they:

Are suitably experienced and qualified in the field for which they will provide Session Content; and

Hold all necessary qualifications, registrations or certificates in order to provide Session Content.

In order to provide Session Content, the Contributor may be required to enter a separate Contributor Agreement with the Company. The Contributor Agreement may set out the following terms, including (without limitation):

The basis on which the Contributor may make Session Content available via Mindrazr;

Ownership of Intellectual Property in Session Content;

Payment for Session Content (if any) and Premium Content.

By default, in the absence of a Contributor Agreement the Contributor:

Makes all Session Content available via Mindrazr royalty free as User Content, and may not make any Premium Content available;

Maintains all ownership and responsibility for all Session Content it makes available via Mindrazr.

The Contributor agrees and accepts that:

It shall not store or record any Health Information that it can access through Mindrazr unless it is fully compliant with the Privacy Act;

It shall not disclose any information, other than to its authorised staff members, about a Listener to any other person or party, other than as authorised by the Listener;

It shall ensure all personal information it has access to through its use of Mindrazr is kept and used in accordance with applicable privacy laws in the jurisdiction;

It shall only use Mindrazr for its intended purpose as set out in this Agreement;

Notwithstanding a Contributor Agreement, the Contributor grants Mindrazr a royalty free licence to use any logos in any form for the purpose of promoting or marketing Mindrazr; and

Its licence to use Mindrazr, as provided for in the General Conditions, is subject to the payment of all necessary Fees.

5. FEES, PAYMENTS & REFUNDS
Fees

The primary Fee to use Mindrazr shall be the Subscription Fee, which is payable in advance (after any free trial period has expired).

All Session Fees shall be paid in advance prior to the Listener being granted access to the Premium Content.

Each Fee applies in accordance with such features and/or services subscribed for by the Customer in accordance with the pricing described on Mindrazr, or as otherwise agreed with the Company.

The Customer agrees to make payment in advance for all Fees due at such frequency, or on such dates as the Customer has subscribed for.

All payments shall be made via the online payment gateway within Mindrazr, or in such other manner as the Company may direct from time-to-time. The Customer agrees that it has no right to access Mindrazr if it fails to make payments when due.

The Company reserves the right to introduce or change any Fees from time-to-time by giving the User no less than 14 days’ written notice. Any new or changed Fees will apply at the next billing period after the Customer has been given such notice.

If a Customer does not accept a change to any Fees, then it can simply terminate its Account.

Currency.

All Fees are quoted in Australian dollars, however transactions may be processed in an equivalent foreign currency (such as US dollars or British pounds).

GST.

For Customers in Australia, GST is applicable to any Fees charged by the Company to the User. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Customer with a Tax Invoice for any payments.

Refunds.

No refunds of Fees are offered other than as required by law.

Late Payment.

If the Customer does not pay the full Fees as required, the Company may suspend all User access to Mindrazr for that Account.

If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Customer’s Account in Mindrazr without notice and end this Agreement.

The User agrees that the Company shall not be responsible or liable in any way for:

Interruptions to the availability of Mindrazr or User Content in the event of (a);

Loss of User Content in the event of (b).

6. THIRD PARTY LOGIN AND REGISTRATION
Registration & Login.

A User may be able to register as a User, access Mindrazr and use integrated features by connecting their account with certain third party services (TPS) (e.g, Facebook, Twitter etc).

As part of the functionality of Mindrazr the User may connect their profile with a TPS by:

Providing their TPS login information to the Company through Mindrazr; or

Allowing the Company to access their TPS in accordance with its terms & conditions of service.

When connecting to Mindrazr using a TPS the User warrants that they are not in breach any of the TPS’ terms & conditions of service.

Ongoing Availability.

The User agrees that User access to Mindrazr may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and Mindrazr.

The User may disconnect the connection between Mindrazr and the TPS at any time.

The Company has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.

Data from TPS.

Where a User connects and or registers their account using a TPS, the User authorises the Company to use data from that TPS to create the User’s profile within Mindrazr.

7. GENERAL CONDITIONS
Licence

By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Mindrazr for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.

The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.

The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User.

Modification of Terms

The terms of this Agreement may be updated by the Company from time-to-time.

Where the Company modifies the terms, it will provide the User with written notice, and the User will be required to accept the modified terms in order to continue using Mindrazr.

Software-as-a-Service

The User agrees and accepts that Mindrazr is:

Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and

Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Mindrazr is available to the User unless expressly agreed in writing.

As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Mindrazr.

Support

The Company provides user support for Mindrazr via the email address support@mindrazr.com.

The Company shall endeavour to respond to all support requests within 1 Business Day.

Use & Availability

The User agrees that it shall only use Mindrazr for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.

The User is solely responsible for the security of its username and password for access to Mindrazr. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Mindrazr account.

The User agrees that the Company shall provide access to Mindrazr to the best of its abilities, however:

Access to Mindrazr may be prevented by issues outside of its control; and

It accepts no responsibility for ongoing access to Mindrazr.

Privacy

The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the User and other customers.

The Privacy Policy does not apply to how a Contributor handles personal information. If necessary under the Privacy Act, it is the Contributor’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.

Mindrazr may use cookies (a small electronic tracking code) to improve a User’s experience while browsing, while also sending browsing information back to the Company. The User may manage how it handles cookies in its own browser settings.

Data Security.

The Company takes the security of Mindrazr and the privacy of its Users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.

Transmission.

The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.

Storage.

The Company stores data on servers based in the Australia according to accepted industry standards. If the Customer requires its User Data to be stored in a different location, the Company may charge the Customer a fee to do so.

Backup.

The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Data from any period of time unless so stated in writing by the Company.

Intellectual Property Trademarks.

The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

Proprietary Information.

The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Mindrazr.

The Mindrazr Application.

The User agrees and accepts that Mindrazr is the Intellectual Property of the Company and the User further warrants that by using Mindrazr the User will not:

Copy Mindrazr or the services that it provides for the User’s own commercial purposes; and

Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Mindrazr or any documentation associated with it.

Content.

All content submitted to the Company, whether via Mindrazr or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Mindrazr.

Disclaimer of Third Party Services & Information

The User acknowledges that Mindrazr is dependent on third-party services, including but not limited to:

  • Banks, credit card providers and merchant gateway providers;
  • Telecommunications services;
  • Hosting services;
  • Email services; and
  • Analytics services.
  • The User agrees that the Company shall not be responsible or liable in any way for:
  • Interruptions to the availability of Mindrazr due to third-party services; or
  • Information contained on any linked third party website.
Liability & Indemnity

The User agrees that it uses Mindrazr at its own risk.

The User acknowledges that the Company is not responsible for the conduct or activities of any User and that the Company is not liable for such under any circumstances.

The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Mindrazr, including any breach by the User of these Terms of Service.

In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, personal injury, illness or death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Mindrazr, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, personal injury, illness or death, or business interruption of any type, whether in tort, contract or otherwise.

Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

The re-supply of services or payment of the cost of re-supply of services; or

The replacement or repair of goods or payment of the cost of replacement or repair.

Termination

Either party may terminate this Agreement by giving the other party 1 month’s written notice.

Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.

Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 6.9, 6.12 and 6.13 survive termination of this Agreement.

Dispute Resolution

If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

Includes or is accompanied by full and detailed particulars of the Dispute; and

Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.

Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

Electronic Communication, Amendment & Assignment

The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.

The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.

A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

Notices must be sent to the parties’ most recent known contact details.

The User may not assign or otherwise create an interest in this Agreement.

The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.

General Special Conditions.

The parties may agree to any Special Conditions to this Agreement in writing.

Prevalence.

To the extent this Agreement is in conflict with, or inconsistent with any Service Agreement, Contributor Agreement or Special Conditions made under this Agreement, the terms of that Service Agreement, Contributor Agreement or Special Conditions (as the case may be) shall prevail.

Disclaimer.

Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

Relationship.

The relationship of the parties to this Agreement does not form a joint venture or partnership.

Waiver.

No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

Further Assurances.

Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

Governing Law.

This Agreement is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

Severability.

Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.