Mindset Health Pty Ltd ACN 617 368 957 (Mindset Health, We or Us) provides the Mindset Health Solution, which is the Nerva mobile app and website that assists Users to assess their suitability for, and provides access to, online hypnotherapy sessions for wellness.
This agreement sets out the terms and conditions on which Mindset Health will provide to individuals who use the Mindset Health Solution (User or You) access to and use of the Mindset Health Solution. This agreement applies regardless of how You access and use the Mindset Health Solution, including by desktop, laptop, smartphone (including iPhone and Android) or tablet.
By clicking the ‘I accept’ button or otherwise confirming Your acceptance electronically, You agree that You have read, understood and will be bound by these terms and conditions and any Mindset Health Notices or Mindset Health Policies. These terms and conditions, together with any Mindset Health Notices or Mindset Health Policies comprise this agreement.
Important notice: Do not use the Mindset Health Solution if You have severe anxiety or depression or have any feelings of self-harm or harm to others - You should seek immediate medical attention from a doctor or a public hospital or call 000.
As outlined in clause 16.2(c), We only collect Your Data in accordance with Our privacy policy which is available at: https://www.mindsethealth.com/legal/nerva-privacy-policy
During the Term We will provide the Mindset Health Solution Services to You on the terms and conditions of this agreement.
We will:
(a) use commercially reasonable endeavours to provide You with access to and use of the Mindset Health Solution during the Term;
(b) permit You to access and use the Mindset Health Solution solely for Your personal health and wellbeing; and
(c) provide You with access to and use of any relevant Documentation during the Term.
You acknowledge and agree that all rights granted to You under this agreement (including all rights to use the Mindset Health Solution) are non-exclusive.
You agree that You will not use the Mindset Health Solution if any of the following applies:
(a) You need urgent medical attention;
(b) You are under the age of 18 and your parent or guardian has not consented to Your use of the Mindset Health Solution;
(c) You are a Vulnerable person, namely a person who has been admitted to a somatic or psychiatric hospital, casualty ward or similar institution due to a mental illness of any kind, or who has been diagnosed with or has received treatment for one or more of the following illnesses or comparable illnesses without having been admitted to a hospital:
(i) schizophrenia;
(ii) multiple personality disorder;
(iii) borderline (borderline psychosis);
(iv) psychosis.
You acknowledge and agree that:
(a) the Mindset Health Solution is not a replacement for psychological, psychiatric, therapeutic or other professional diagnosis and/or treatment by trained professionals;
(b) information and content provided through the Mindset Health Solution is not medical advice, and We do not provide medical or diagnostic services or prescribe medication;
(c) You are solely responsible for deciding which of the suggested techniques in the Mindset Health Solution are put into practice and the manner in which those techniques are applied;
(d) the Mindset Health Solution is not intended to diagnose, treat or otherwise address any medical problem and the material on the app, whether posted by Our employees, or other Users, is provided for Your information and not as medical advice and should not be seen as a replacement for consultation with a doctor or other qualified healthcare professional;
(e) any advice that is provided by Your doctor or other qualified medical professional (which takes into account Your personal circumstances) which conflicts with anything contained in the Mindset Health Solution will take precedence;
(f) Your use of the Mindset Health Solution may expose You to effects that may potentially cause very strong emotional reactions, physical responses and changes, including but not limited to the following:
(i) informative sentences that might evoke memories or associations that We cannot control or regulate and which might feel unsettling for You;
(ii) language that might activate feelings or emotional moods that We cannot control or regulate and which might feel unsettling for You; and
(iii) suggestions that lead to changes in the body which We cannot control or regulate.
(g) you are responsible for ensuring that the Mindset Health Solution is compatible with Your own hardware, software and internet and network capabilities and maintaining all hardware, software, Third Party Applications and other technology necessary to be able to access and use the Mindset Health Solution.
(h) you have read and agreed to the following Virtual Coaching Service Disclaimer. You may have access to personal coaching services (“Virtual Coaching Service”). If you have access to our Virtual Coaching Service, you will be able to interact with a Coach, who may be an employee or a contractor of Mindset Health or personnel from an unaffiliated third party service provider (such person, a “Coach”). A Coach will assist his/her users in developing skills to help them achieve their health related goals. Mindset Health may, in its sole discretion, engage or replace any Coach with another without notice to the Virtual Coaching Service users. The services provided by our Virtual Coaching Service are not medical, mental health or any other type of health service. Virtual Coaching Service is not psychotherapy, dietary or mental health counseling. No diagnosis or treatment of, or advice regarding, any medical or mental health condition or illness will be offered. The Virtual Coaching Service cannot substitute for, and is not an alternative to, medical, psychiatric, psychological, dietary, psychotherapy or other healthcare diagnosis and treatment when a medical or mental health condition or illness is present. You are advised to seek diagnosis, treatment and advice regarding medical or mental conditions or illnesses from physicians practicing medicine, psychotherapists, psychologists and other licensed healthcare and mental health professionals. The Virtual Coaching Service is designed to provide individuals with education, information and personal support around how to use the program, answer frequently asked questions and regarding your health-related issues and goals. Coaches are not allowed to use the Virtual Coaching Service to engage in rendering any type of psychological, dietary or healthcare advice for any individual or for his or her particular situation. Under no circumstances will any of your interactions with any Coach or any User of the Services be deemed or construed to create a physician-patient relationship or a fiduciary duty of any kind whatsoever.
(i) YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH COACHES WHEN USING THE SERVICES.
You must:
(a) use the Mindset Health Solution only for Your personal health and wellbeing in accordance with this agreement;
(b) ensure that Your use of the Mindset Health Solution complies with all applicable laws, regulations and codes of conduct;
(c) cease using the Mindset Health Solution where You begin experiencing any feeling of mental or physical discomfort in connection with Your use of the Mindset Health Solution, and must immediately seek professional help from a trained specialist in such circumstances;
(d) only use and copy Documentation to the extent necessary to use the Mindset Health Solution;
(e) comply with any Mindset Health Policies;
(f) not permit any other person to use the Mindset Health Solution using Your Authentication Credentials;
(g) not modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Mindset Health Solution and not create derivative works from all or any part of the Mindset Health Solution;
(h) not attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Mindset Health Solution;
(i) not create derivative works from all or any part of the Mindset Health Solution;
(j) not distribute, transfer, assign, rent, lease, lend, sell, licence or otherwise dispose of all or any part of the Mindset Health Solution or any compilation derived from the Mindset Health Solution; and
(k) not make any part of the Mindset Health Solution publicly available.
You acknowledge that We retain the sole discretion regarding the features, functions and other benefits of the Mindset Health Solution. Nothing in this agreement requires Us to provide or maintain any features, functions or other benefits in respect of the Mindset Health Solution and We may at any time vary, modify or suspend the features, functions and other benefits available to You in respect of the Mindset Health Solution. You also acknowledge and agree that nothing in this agreement limits Our right to discontinue or alter any such features, functions, services or other benefits from time to time.
You acknowledge that the Mindset Health Solution may interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used to provide particular features or functionality. You acknowledge that access to such Third Party Applications or services and any support for such Third Party Applications or services must be obtained directly from the relevant Third Party Provider at Your cost. We do not make any representations or warranties regarding any such Third Party Applications or services and will not be responsible for any issues in respect of Third Party Applications or services or any Loss suffered by You in connection with any Third Party Applications or services or Your dealings with Third Party Providers.
We may provide or enable You to generate passwords or other ways to enable Us to identify You (Authentication Credentials) in order for You to be able to access the Mindset Health Solution.
You must:
(a) ensure that each Authentication Credential is securely maintained and used only by You;
(b) immediately notify Us and take immediate steps to suspend, disable or change an issued Authentication Credential if the Authentication Credential is lost, stolen, missing or is otherwise compromised; and
(c) not transfer or allow to be transferred Authentication Credentials between or amongst other persons.
We reserve the right at any time and from time to time to change and/or revoke Authentication Credentials. You will be responsible for any use of the Mindset Health Solution or any related transactions by any person using Your Authentication Credentials (whether authorised by You or not).
Unless otherwise agreed in writing between You and Us, We are not required to provide any technical or other support to You in relation to the Mindset Health Solution and nothing in this agreement imposes obligations on Us to develop, release or install for You any updates, upgrades, patches, bug fixes, new releases or new versions in respect of the Mindset Health Solution (Updates), provided, however, that if We do develop or release any Updates, We may deploy or install such Updates and/or require that all such Updates be used by You.
(a) In consideration of the provision of the Mindset Health Solution Services, during the Term You agree to pay to Us the Subscription Fees. You also agree to pay any other amounts which may become payable to Us under this agreement.
(b) We may increase the Subscription Fees for any Renewal Term by giving You notice of the increase at least 10 days prior to commencement of the relevant Renewal Term.
(c) If You do not agree to the increased Subscription Fees, your licence of the Mindset Health Solution will be terminated at the conclusion of the Initial Term or current Renewal Term (as applicable) and any Subscription Fees paid by You prior to the date of termination are non-refundable.
(d) Initial subscription fees may be refunded according to our refund policy.
If You fail to pay any Fees or other amounts due to Us under this agreement (including where any payment using a credit card or other payment facility is rejected or charged back) then (without prejudice to Our other rights) We may issue a notice to You stating that the relevant amount is overdue (Overdue Notice). If We do not receive payment of the relevant Fees or other amounts within 14 days of the date of the Overdue Notice, We may cease providing the Mindset Health Solution Services and may disable Your access to the Mindset Health Solution until such time as the outstanding amount is paid in full. We will not be liable for any Loss suffered by You as a result of exercising Our rights under this clause 9.2.
(a) Subject to clause 10(b), this agreement commences on the Commencement Date and will continue for the Initial Term and any Renewal Term, unless terminated earlier in accordance with clause 13.
(b) Unless You turn off the auto renew settings at least 24 hours prior to the conclusion of the Initial Term or a Renewal Term (as applicable) or otherwise provide notice to Us that you do not wish to renew this agreement, this agreement will automatically be renewed for a further Renewal Term commencing upon expiry of the relevant Initial Term or Renewal Term and You will be charged the relevant Subscription Fee for such Renewal Term.
(c) Your account will be charged the Subscription Fee for the next Renewal Term within 24-hours prior to the conclusion of the Initial Term or current Renewal Term (as applicable).
(a) You must not upload or store any Unacceptable Content into the Mindset Health Solution or Mindset Health Infrastructure.
(b) If We reasonably believe that any Unacceptable Content has been uploaded into the Mindset Health Solution or is being stored on the Mindset Health Infrastructure, We may request You either to remove the Unacceptable Content or disable access to the Unacceptable Content and You must immediately comply with such request.
(c) We have the right (but not the obligation) to remove Unacceptable Content from the Mindset Health Solution or Mindset Health Infrastructure or disable access to Unacceptable Content where You have not complied with a request made by Us under clause 11(b).
(d) Nothing in this agreement imposes obligations on Us to monitor the Mindset Health Solution for Unacceptable Content or otherwise monitor or screen Data for Unacceptable Content.
We may suspend Your rights or ability to access the Mindset Health Solution or any part of the Mindset Health Solution where We determine such suspension is necessary including to address security risks or for regular maintenance or where You have breached any obligation under this agreement. We will use reasonable endeavours to minimise the duration of any such suspension and provide prior notice to You of any such suspension. You will be required to pay the Subscription Fees and any other relevant Fees notwithstanding any suspension under this clause 12 and We will not be liable for any Loss incurred by You as a result of or in connection with any suspension under this clause 12.
We may, by written notice to You, terminate this agreement with immediate effect if:
(a) You fail to comply with any written notice issued by Us requiring You to remedy a breach, non-observance or non-performance of Your obligations under this agreement within seven days of receiving that notice from Us; or
(b) You commit a breach of this agreement which is incapable of remedy.
Without limiting Our rights under clause 13.1, either party may terminate this agreement at any time and without cause by providing the other party with no less than 30 days written notice of termination subject to Subscription Fees paid by You prior to the date of termination are non-refundable.
Upon termination or expiry of this agreement taking effect:
(a) You must immediately:
(i) cease using the Mindset Health Solution;
(ii) pay to Us all Fees, expenses or other sums payable to Us under this agreement which have accrued or are payable as at the date of termination;
(b) We cease to have any obligations under this agreement or otherwise with respect to the provision of Mindset Health Solution Services and may disconnect Your access to the Mindset Health Solution, disable all Authentication Credentials and delete any Data stored on the Mindset Health Infrastructure.
(c) For the avoidance of doubt, following termination of this agreement taking effect, We will be entitled to retain any Fees paid by You, even if such amounts were paid in advance. Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations in the rest of this agreement.
(a) The Mindset Health Solution is not directed to children under 15 years of age or minors, and We do not knowingly collect personally identifiable information from children under 15 years of age. Persons under 15 years of age should not use this application without their parent’s or guardians consent, nor should they provide personal information to Us through the Mindset Health Solution.
(b) If We become aware that a child under the age of 15 has provided their personal information, We will immediately delete that child’s information from Our files.
(a) You acknowledge that nothing in this agreement grants You any ownership of, or (subject to clauses 16.1(c) and 16.2(b)) rights in respect of, the Intellectual Property in the Mindset Health Solution, any Data, any Documentation, any Intellectual Property in any materials created as a result of the performance of the Mindset Health Solution Services or any Improvements to the Mindset Health Solution or Documentation created in connection with this agreement.
(b) Any Intellectual Property in respect of the Mindset Health Solution, Mindset Health Solution Services, Data or Documentation which is created by or vests in You during the Term is assigned to Us immediately upon the Intellectual Property being created or vesting in You, and You agree to do all things and execute all documents as are reasonably necessary to effect such assignment.
(c) During the Term, We grant You a limited, non-exclusive, non-transferrable and revocable licence to use the Mindset Health Solution and Documentation solely to the extent such use is necessary for You to receive the Mindset Health Solution Services. Unless revoked earlier by Us, the licence granted under this clause 16.1 terminates immediately upon the termination or expiry of this agreement.
(a) You grant Us a non-exclusive, royalty-free, transferable and perpetual licence to use and exploit the Data:
(i) for providing the Mindset Health Solution Services to You;
(ii) as permitted under privacy laws; and
(iii) for analysing the de-identified Data in order to identify patterns, trends, and other statistical data or perform other data analytics.
(b) We grant You a non-exclusive, non-transferable licence to use Your Data during the Term solely for the purposes of Your use of the Mindset Health Solution.
(c) You acknowledge that the Data will be collected and disclosed by Us in accordance with Our privacy policy https://www.mindsethealth.com/legal/nerva-privacy-policy, and You consent to the collection of Data (including health information) in accordance with these policies and controls.
We will take all reasonable steps to ensure the security and safety of the Data and other information stored on the Mindset Health Infrastructure, including by implementing and maintaining reasonable and current data protection and virus screening procedures and technologies. Notwithstanding the above, You acknowledge that transmissions over the internet cannot be guaranteed to be totally secure and We do not warrant and cannot ensure the security of any information or Data provided through the Mindset Health Solution.
Provided We comply with our obligations under clause 17.1, subject to law, We will not be liable for any Loss suffered by You which arises out of or in connection with:
(a) any computer viruses or malicious code being transferred by or obtained as a result of the use of the Mindset Health Solution;
(b) any hacking into or other similar attacks on the Mindset Health Solution or the Mindset Health Infrastructure; or
(c) any other data security issues in respect of the Mindset Health Solution or the Mindset Health Infrastructure.
From time to time the Mindset Health Solution may be unavailable for access or use (including for the undertaking of scheduled or unscheduled maintenance in respect of the Mindset Health Solution or Mindset Health Infrastructure) and We will not be liable for the consequences of any Mindset Health Solution unavailability and do not make any representations or provide any warranties regarding the availability of the Mindset Health Solution or the timeframes within which any unavailability in respect of the Mindset Health Solution will be resolved.
You agree and acknowledge that We may subcontract the performance of any of Our obligations or the exercise of any of Our rights under this agreement to any person without Your consent and on such terms and conditions as We deem fit from time to time.
The Mindset Health Solution may be accessed and used throughout numerous jurisdictions and We make no representations that the Mindset Health Solution complies with the laws of any particular jurisdiction. You are responsible for complying with the laws in any jurisdiction in which You access or use the Mindset Health Solution.
(a) To the extent permitted by law, We do not warrant or guarantee that:
(i) the Mindset Health Solution will be compatible with, or capable of being used on or in connection with, Your computer and communications systems;
(ii) Your access to the Mindset Health Solution will be uninterrupted or error free;
(iii) the Mindset Health Solution will be accurate, reliable or fit for any particular purpose; or
(iv) any reports provided by Us to You, or otherwise produced by the Mindset Health Solution, as a result of Your use of the Mindset Health Solution will be accurate, complete, correct, reliable or fit for any particular purpose.
(b) Subject to law, We do not take any responsibility or assume any liability for any Data which is uploaded or posted by You to the Mindset Health Solution, or for any Loss or damage thereto.
You acknowledge and warrant that You:
(a) have relied on Your own judgment in the selection of the Mindset Health Solution;
(b) have satisfied Yourself that the Mindset Health Solution is fit for all the purposes which You require it for; and
(c) You use the Mindset Health Solution at your own risk.
(a) Nothing in this agreement should be interpreted as attempting to exclude, restrict or modify the application of relevant consumer protection, consumer guarantees (including for personal injury) or other similar laws that apply to this agreement and cannot be contractually excluded, restricted or modified (Applicable Consumer Laws).
(b) Subject to clauses 22.1(a) and 22.1(e) and to the fullest extent permitted by law, Our maximum aggregate liability for any Loss, however caused, suffered by You in connection with this agreement or Your access to or use of the Mindset Health Solution is limited to the total amount of the Subscription Fees paid by You to Us under this agreement.
(c) Subject to clauses 22.1(a) and 22.1(e), to the extent permitted by law, Our liability to You in relation to any claim under any Applicable Consumer Laws relating to Your access and use of the Mindset Health Solution or otherwise arising under or in connection with this agreement is limited, at Our election and discretion to:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
(ii) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
(d) The above limitations of Our liability apply whether the claim is in contract, tort (including without limitation, negligence) equity or otherwise and even if We have been notified of the possibility of such Loss or damage and You agree that Our liability, if any, to You at law will be reduced by the extent, if any, to which You contributed to the Loss.
(e) To the extent permitted by law, all claims arising under or in connection with this agreement must be commenced within 6 months of the relevant events giving rise to the claim first occurring and all claims not commenced within such period are absolutely and forever barred.
We are not liable for any Consequential Loss (however caused) suffered or incurred by You in connection with this agreement, the Mindset Health Solution Services or the use of the Mindset Health Solution. This clause applies even if We knew or ought to have known that the relevant Consequential Loss would be suffered or incurred by Us.
You must indemnify and keep indemnified Us and each of Our directors, officers, employees, agents, contractors and related bodies corporate against any Loss suffered or incurred by Us which arises directly or indirectly out of:
(a) any breach of this agreement by You;
(b) You or any other person in any way accessing or using the Mindset Health Solution;
(c) any uploading of the Data into the Mindset Health Solution, storage of any Data on the Mindset Health Infrastructure or use of the Mindset Health Solution by You which does not comply with privacy or other laws of any applicable jurisdiction;
(d) any claim by a third party that Your Data infringes the third party's Intellectual Property rights; or
(e) any negligent or unlawful acts undertaken by You.
Unless expressly stated otherwise, all fees and other amounts payable by You under or in connection with this agreement have been calculated without regard to any Indirect Tax. Notwithstanding anything to the contrary in this agreement, if Indirect Tax is imposed upon or is payable by Us under or in connection with this agreement, You must pay to Us an amount equal to the Indirect Tax upon demand by Us.
If You are required by law to make any deduction or withholding for any Taxes from any payments to Us under this agreement such that We would not receive the full amount of the Fees or other amount payable, You agree to:
(a) deduct or withhold the amount for Taxes from the payment;
(b) promptly pay the amount deducted to the relevant Government Authority on time and otherwise in accordance with the relevant law;
(c) provide to Us an original receipt, certificate or other evidence of payment of the deducted or withheld amount; and
(d) pay an additional amount to Us at the same time as the affected payment is due so that, after making the deduction or withholding and any further deductions or withholdings on the additional amount payable under this clause 24.2, We receive an amount equal to the amount We would have received if no deductions or withholdings had been made.
Nothing in this agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
This agreement will be construed and interpreted in accordance with the laws of the State of Victoria, Australia and each party submits to the non-exclusive jurisdiction of courts of that jurisdiction.
You may not assign or otherwise deal with any of their rights or obligations under this agreement without Our prior written consent. We may assign, novate or otherwise deal with Our rights under this agreement at any time effective immediately upon Us notifying You of the assignment or novation.
This agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
If a party is prevented, hindered or delayed from performing its obligations under this agreement by a Force Majeure Event (other than an obligation of You to pay any Fees or other amounts), then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.
We can amend these terms and conditions or the Mindset Health Solution at any time by providing to you 30 days prior written notice to You. If we amend these terms and conditions we will advise You by email and post the amended terms and conditions on our website and our app. If you do not agree to those terms and conditions You can terminate Your subscription by providing to us 30 days prior written notice.
If any provision of this agreement is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) You agree that when You provide any consent, authority or agreement through the Mindset Health Solution, You do so as an electronic transaction and warrant that such transaction shall be binding.
(c) You agree that any request for a consent, authority or agreement You send to other Users through the Mindset Health Solution as an electronic transaction may be sent directly from Your email address.
(d) You can direct notices, enquiries, complaints and so forth to Us as set out in this agreement. We will notify You of a change of details from time-to-time.
(e) We will send You notices and other correspondence to the details that You submit to Us, or that You notify Us of from time-to-time. It is Your responsibility to update Your contact details as they change. We may also provide certain notices to You by posting or otherwise making the notice available on the Mindset Health Solution.
(f) 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.
(g) Notices must be sent to the parties’ most recent known contact details.
In this agreement, unless the context otherwise requires:
(a) Authentication Credentials means the username and password or other means of authentication which You are required to provide in order to be able to access the Mindset Health Solution.
(b) Commencement Date means the date that You subscribe, and pay the applicable Subscription Fee, to use the Mindset Health Solution.
(c) Confidential Information means any information provided by a party to the other party (whether provided before or after execution of this agreement) in connection with the Mindset Health Solution Services or this agreement but does not include information which is in or becomes part of the public domain, other than through a breach of this agreement or of an obligation of confidence, or information which a party proves was independently acquired or developed without breaching any of the obligations set out in this agreement.
(d) Consequential Loss means loss beyond the normal measure of damages and includes indirect loss, loss of revenue, loss of reputation, loss of profits (direct or indirect), loss of actual or anticipated savings, loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, loss of use, loss of or damage to data, cost of capital or costs of substitute goods, facilities or services.
(e) Data means all data, information, content or communications uploaded to the Mindset Health Solution by or on behalf of You or otherwise generated by the Mindset Health Solution or as a result of the use or operation of the Mindset Health Solution.
(f) Documentation means any manuals, guides, reference materials or other similar documents in any form made available by Us to You in connection with the Mindset Health Solution.
(g) Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it, including war, civil commotion, military action, government decree or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake, pandemic or other natural calamity or an ongoing internet or telecommunications outage or impairment but does not include lack of funds.
(h) Government Authority means any governmental, semi-governmental, municipal, statutory, judicial or quasi-judicial authority, department, agency, body, entity, organisation, commission or tribunal.
(i) Improvement means any modification, alteration, development, new use, new features or other change to the Mindset Health Solution which makes it more accurate, more useful, more functional, more efficient, more cost effective or in any other way preferable.
(j) Indirect Tax means a goods and services tax, a value added tax, a consumption tax or a tax of a similar kind.
(k) Initial Term means the period starting on the Commencement Date and ending at the conclusion of the specific subscription period selected by You at the time You subscribe to use the Mindset Health Solution.
(l) Intellectual Property includes all patents, designs, copyright, trade marks or circuit layout rights and any right to apply for the registration or grant of any of the above.
(m) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and whether direct loss or Consequential Loss.
(n) Mindset Health Solution means the online software application made available by Us for use by You from time to time to assist in assessing Your suitability for, and provide access to, online hypnotherapy sessions for wellness.
(o) Mindset Health Solution Services means the services described in clause 1.2.
(p) Mindset Health Infrastructure means the data hosting systems, services or technologies used by Us in connection with the provision of the Mindset Health Solution Services.
(q) Mindset Health Notices means any notices provided to You by Us from time to time under this agreement (including by Us posting or otherwise making the notice available on the Mindset Health Solution).
(r) Mindset Health Policies means any policies relating to the Mindset Health Solution which We provide to You from time to time or make available on the website https://www.mindsethealth.com/legal as such policies may be updated by Us from time to time.
(s) Renewal Term means any period for which this agreement is renewed or extended pursuant to clause 10(b).
(t) Subscription Fees means the applicable subscription fees payable to access the Mindset Health Solution and to receive the Mindset Health Solution Services for the Initial Term or any Further Term, as notified to You at the time You first subscribe to use the Mindset Health Solution and as varied by Us from time to time in accordance with clause 9.1(b).
(u) Taxes means any taxes, rates, levies imposts, duties or other charges assessed or payable to any Government Authority and includes any additional taxes, interest, penalties, charges, fees or other amounts imposed in relation to a failure to file a return or to pay the tax.
(v) Term means the term of this agreement, comprising of (unless terminated earlier) the Initial Term and any Renewal Term.
(w) Third Party Application means any product, service, system, application or internet site integrated or interfaced with the Mindset Health Solution that is owned or operated by a Third Party Provider, and that is used by You in connection with the Mindset Health Solution.
(x) Third Party Provider means any third party that provides support, technology and/or other products or services that are used by You in connection with the Mindset Health Solution.
(y) Unacceptable Content means any:
(i) content which, in Our reasonably held opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable laws, regulations or codes of conduct;
(ii) content which is incorrect, false or misleading;
(iii) files with any viruses, malicious code or other conditions which could damage or interfere with data, hardware or software; and
(iv) any content that, in Our reasonably held opinion, is objectionable or which restricts or inhibits any other person from using or enjoying the Mindset Health Solution, or which may expose Us or Our affiliates or Users to any harm or liability of any type.
(z) User means a person who subscribes to use the Mindset Health Solution.
In this agreement, headings are inserted for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions;
(d) a reference to a person includes an individual, a partnership, a corporation or other corporate body, a joint venture, a firm, a trustee, a trust, an association (whether incorporated or not), a government and a Government Authority;
(e) all monetary amounts are in Australian dollars, unless otherwise stated and a reference to payment means payment in Australian dollars; and
(f) no provision of this agreement will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the agreement or the inclusion of the provision in the agreement.