TERMS OF SERVICE
The Company provides the Application for access to guided audio and video exercises for mental and physical well-being. Use of the Application is subject to these Terms of Service.
(a) ABN means Australian Business Number.
(b) Access Code means the code to access and use the Application, as provided by the Company or Third Party Provider (as the case may be).
(c) Account means a registered account with the Application.
(d) Application means the Company’s “Mindrazr” digital health and well-being platform accessible from the Site and/or Mobile Application Marketplace from time-to-time.
(e) Authorised User means any registered user of the Application authorised to access the Account.
(f) 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.
(g) Commercial Terms means any additional terms agreed with the Customer with respect to the Customer’s licence for the Application, and includes any written proposal or quotation accepted by the Customer.
(h) Company means Mindrazor Pty Ltd ABN 38 605 775 095.
(i) Corporations Act means the Corporations Act 2001 (Cth).
(j) Customer means the individual or organisation to whom the Application is licensed to under these Terms of Service (which if in doubt shall be the named Account holder).
(k) EHR (Electronic Health Record) means the record of a User’s Health Information in the Application.
(l) Fee means a fee charged to the Customer for use of the Application.
(m) Health Information has the same meaning as in the Privacy Act (but generally refers to information about the physical or mental well-being, injury or a disability of a User at any time).
(n) 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.
(o) Mobile Application Marketplace means an online marketplace for access to the Application and other applications for mobile devices, such as the App Store.
(p) Privacy Act means the Privacy Act 1988 (Cth).
(r) Session means a guided exercise session for mental and physical well-being consisting of Session Content and music delivered via the Application.
(s) Session Content means any audio, video or written content that provides exercise instructions to a User for use in a Session.
(t) Site means https://www.mindrazr.com/ or such other URL the Company may adopt from time-to-time.
(u) Terms of Service means the terms and conditions of using the Application, as updated from time-to-time, which can be found at the Site.
(v) Third Party Partner means a third-party service provider that is permitted by the Company to sell the Application from time-to-time.
(w) Tracker means the personal analytics features within the Application that track a User’s progress before and after a Session.
(x) User means any Customer or Authorised User.
(y) User Content means images, video, audio, information, documents or other data that is uploaded or input into the Application by the User or that forms part of the User’s Intellectual Property and shall exclude statistical, analytical or other non-personal derivative data generated by use of the Application.
(a) To access and use the Application:
i The Account must be set up and registered; and
ii Each User must register with the Application, either as a Customer or as an Authorised User, as the case may be.
(b) The Customer is responsible for the conduct of each Authorised User it authorises, who each must agree to and comply with these Terms of Service.
(c) The User agrees that all use of the Application is subject to these Terms of Service. If a User does not accept any terms of these Terms of Service, the User must immediately cease using the Application.
(d) The Company does not provide personalised physical training, mental health or well-being services, and is not intended as a substitute for consultation with a qualified professional in the relevant field.
(e) The Company makes no representation that the User will achieve particular results or benefits from using the Application.
(f) Anyone over the age of 18 may use the Application. People under 18 years of age must not use the Application without their parent or legal guardian’s consent.
The Company shall provide the User with access to and use of the features as made available within the Application from time-to-time.
(a) A User may preform exercises to support their physical, mental and/or general well-being by selecting a Session within the Application.
(b) The User 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 User failing to correctly follow instructions.
(c) The Application is intended to supplement personal consultations and classes. Sessions are not intended to replace personalised consultations with suitably qualified professionals in the fields of mental or physical well-being.
(d) If a User experiences any pain or discomfort while participating in any physical exercise, while following any instructions in a Session, the User is advised to immediately cease the exercise and consult a doctor or physiotherapist (as may be appropriate).
(a) A User may listen to music by either:
i Accessing the music files stored on their mobile device; or
ii Streaming the music made available by the Company via the Application.
(b) The User is responsible for ensuring that the User has all necessary rights to the music that is accesses via the Application including files stored on their mobile device.
(a) Prior to commencing, and immediately following, a Session the User shall be asked a series of questions in order to determine the User’s progress via the Tracker.
(b) By answering Tracker questions, the User creates an EHR that tracks their health and progress via the Application.
(c) The User is responsible for the accuracy of all answers that they provide to the Tracker.
(f) The Company is not responsible for the accuracy of the information contained in an EHR.
(a) The User may be required to provide certain information as part of their registration to the Application, such as their age and gender.
(b) Any information provided by the User pursuant to (a) above may be used to generate reports for the relevant Customer, comprising of anonymous and aggregated data.
2.1 The User agrees and accepts that:
(a) The User uses the Application 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 the Application. It is the User’s responsibility to follow the instructions in a Session and correctly perform each exercise;
(b) The User indemnifies the Company against all costs, claims damages and expenses for any injury or damage caused to the person or property as a result of the User’s use of the Application;
(c) Any consent made by a User through the Application is valid and binding unless and until revoked by the User; and
(d) All information input to the Application about a User is provided with that User’s consent.
3.1 Registration & Login.
(a) A User may be able to register as a User, access the Application and use integrated features by connecting their account with certain third party services (TPS) (e.g, Facebook, Twitter etc).
(b) As part of the functionality of the Application, the User may connect their profile with a TPS by:
i Providing their TPS login information to the Company through the Application; or
ii Allowing the Company to access their TPS in accordance with its terms & conditions of service.
(c) When connecting to the Application using a TPS, the User warrants that they are not in breach any of the TPS’ terms & conditions of service.
3.2 Ongoing Availability.
(a) The User agrees that User access to the Application may be unavailable if the TPS becomes unavailable, and that the User may lose functionality or content that is shared between the TPS and the Application.
(b) The User may disconnect the connection between the Application and the TPS at any time.
(c) The Company has no relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
3.3 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 the Application.
(a) Subject to clause (b), the Customer agrees to pay the Fees to the Company in accordance with the pricing agreed in the Commercial Terms as and when they fall due,
(b) Where the Customer has accessed the Application via a Third Party Partner, then Fees shall be payable directly to the Third Party Partner.
(c) The Company may suspend the Customer’s Account should any Fees be outstanding at any time. This may, in time, result in termination of access to the Application for all of a Customer’s Authorised Users.
(d) The Customer agrees that the Company shall not be liable in any way for any valid termination or suspension of the Customer’s access to the Software.
4.2 Access Code
(a) Upon the payment of the applicable Fees in accordance with clause 4.1, the Customer will be provided an Access Code to distribute to selected Authorised Users for access to the Application.
(b) For clarity, any Authorised User that accesses and uses the Application via an Access Code as per (a) above, is not responsible for the payment of any Fees.
(a) By accepting the terms and conditions of these Terms of Service, the User is granted a limited, non-exclusive and revocable licence to access and use the Application for the duration of these Terms of Service, in accordance with the terms and conditions of these Terms of Service.
(b) 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.
(c) 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 these Terms of Service by the User.
5.2 Modification of Terms
(a) The terms of these Terms of Service may be updated by the Company from time-to-time.
(b) 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 the Application.
(c) The modified terms shall come into effect the next time the User accesses the Application following notice of the updated terms.
(a) The User agrees and accepts that the Application is:
i 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
ii Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to the Application is available to the User unless expressly agreed in writing.
(b) 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 the Application.
The Company provides support for the Application via the email address email@example.com.
5.5 Use & Availability
(a) The User agrees that it shall only use the Application 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.
(b) The User is solely responsible for the security of its username and password for access to the Application. The User shall notify the Company as soon as it becomes aware of any unauthorised access of its the Application account.
(c) The User agrees that the Company shall provide access to the Application to the best of its abilities, however:
i Access to the Application may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to the Application.
(a) Security. The Company takes the security of the Application 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.
(b) 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.
(c) Storage. The Company stores data on servers based in the Australia according to accepted industry standards. If the User requires its User Data to be stored in a different location, the Company may charge the User a fee to do so.
(d) 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.
(e) Liability. The Company has no liability to the User for any User that:
i Exports any data from the Application;
ii Shares any information contained within the Application; and/or
iii Accesses any User Data via the Application.
5.8 Intellectual Property
(a) Trade marks. The Company has moral and 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.
(b) 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 the Application.
(c) The Application. The User agrees and accepts that the Application is the Intellectual Property of the Company and the User further warrants that by using the Application the User will not:
i Copy the Application or the services that it provides for the User’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Application or any documentation associated with it.
(d) Content. All content submitted to the Company, whether via the Application or directly by other means, but excluding User Content, 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 the Application.
5.9 Third Party Dependencies
The User agrees and acknowledges that the Application has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.
(a) The Company agrees to keep all User Content in the strictest confidence, and to the extent User Content is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms of Service.
(b) Each party acknowledges and agrees that:
i The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
ii It owes an obligation of confidence to the Discloser concerning the Confidential Information;
iii It must not disclose the Confidential Information to a third party except as permitted in these Terms of Service;
iv All Intellectual Property rights remain vested in the Discloser, but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
v Any breach or threatened breach by the receiving party of an obligation under these Terms of Service may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
(c) A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
i Any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
ii Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
iii Any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.
(d) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
i Any actual, suspected, likely or threatened breach of a term of these Terms of Service; or
ii Any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
5.11 Liability & Indemnity
(a) The User agrees that it uses the Application at its own risk.
(b) 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.
(c) 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 the Application, including any breach by the User of these Terms of Service.
(d) 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 the Application, 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.
(e) 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:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
(a) Either party may terminate these Terms of Service by giving the other party written notice, which will be deemed to be given when the account linked to the User is cancelled.
(b) Termination 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.
5.13 Dispute Resolution
(a) If any dispute arises between the parties in connection with these Terms of Service (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute; and
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) 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.
(c) 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.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
5.14 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The User can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms of Service. The Company will notify the User of a change of details from time-to-time.
(c) 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.
(d) A consent, notice or communication under these Terms of Service is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The User may not assign or otherwise create an interest in these Terms of Service.
(g) The Company may assign or otherwise create an interest in its rights under these Terms of Service by giving written notice to the User.
(a) Special Conditions. The parties may agree to any Special Conditions to these Terms of Service in writing.
(b) 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 these Terms of Service.
(c) Relationship. The relationship of the parties to these Terms of Service does not form a joint venture or partnership.
(d) Waiver. No clause of these Terms of Service will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(e) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms of Service and the transaction facilitated by it.
(f) 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.
(g) Severability. Any clause of these Terms of Service, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms of Service.