This is a legally binding agreement and governs use of Awakened Mind™ mindfulness app (the AM App) delivered via a website or mobile app (AM App) from Awakened Mind Group Pty Ltd ABN 46 625 632 206 (Awakened Mind, We, Us or Our) or from a third party (such as an employer) who is authorised by Us to provide it to you (You or Your). By clicking “I agree” or downloading, installing or using the AM App from the Apple AppStore or Google Play, You acknowledge and agree that
(a) You have read and understood this Agreement,
(b) You agree to be bound by its terms,
(c) all registration information You provided to Us in the Order is truthful and accurate,
(d) You are legally capable of entering into binding contracts and
(e) that if You are using the AM App on behalf of an entity other than Yourself, You have the power and authority to bind that entity and consent to this Agreement.
The following terms apply to this Agreement:
Confidential Information means all trade secrets, ideas, know how, concepts and information whether in writing or otherwise relating in any way to Us or to You, Our sub-licensees, agents and employees, Your or Our affairs or businesses, sales, marketing or promotional information, this Agreement including any such information in Our or Your power, possession or control concerning or belonging to any third party but does not include information that:
(a) is, or becomes part of, the public domain otherwise than by breach of this Agreement by You or Us;
(b) is lawfully obtained by either party from another person without any restriction as to use and disclosure; or
(c) was in the receiving party's possession prior to disclosure to it by You or Us.
AM App means the mindfulness, meditation and other modules developed by Awakened Mind, including Third Party Content that We may make available from time to time, and any updates, upgrades, modifications and documentation that We provide to You by subscription under this Agreement.Fees means the First Term Subscription Fees, the Renewal Term Subscription Fees and any additional fees that You and Us agree are payable under this Agreement.
First Term means the initial period of paid AM App provided under the Agreement.
First Term Subscription Fees means the fees owed by You to use the AM App for the First Term.
Free Term means a period for using the Free AM App at no charge that We may provide to You.
Free AM App means a limited version of the AM App that We may make available to You to use for a Free Term.
Order means the purchase of a license to use the AM App for a First Term or Renewal Term through the AM App, the Website, the Apple AppStore or Google Play.
Our Intellectual Property Rights means copyright, and all rights in relation to inventions, registered and unregistered trade marks (including service marks), registered and unregistered designs, circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields under the laws of any jurisdiction throughout the world and includes data and usage statistics that We collect from Users of the AM App or Free AM App but excludes Your Confidential Information.
Renewal Term Subscription Fees means the fees owed by You to Us to extend the license to use the AM App for the Renewal Term.
Renewal Term means the period that starts at the end of the First Term and includes each subsequent Renewal Term.
Supported Device means a computer or mobile device that meets the specifications described on the Website and that We support for operating the AM App or the Free AM App.
Term means the First Term and any subsequent Renewal Term.
Third Party Content means modules or other materials that We may include in the AM App.
User means a single person identified by a unique email address and such address may not be shared with other people.
Website means the Awakened Mind website at https://www.awakenedmind.com or the website of a partner of Ours who is authorised to distribute the AM App or the Free AM App.
We grant You a non-exclusive, non-transferable, licence to use the AM App or the Free AM App and the Third Party Content as a User on a Supported Device for the Term specified in the Order or for the Free Term. This license does not allow You to use the AM App or the Third Party Content to operate a service bureau, SaaS, cloud-based service, hosting service or other similar service or to make available the AM App to anyone other than You. Neither this Agreement, the AM App, the Free AM App nor the Third Party Content may be sold, leased, assigned, sublicensed or transferred by You, in whole or in part.
3. TERM, NOTICE FOR TERMINATION AND CANCELLATIONS.
The Initial Term and each subsequent Renewal Term will automatically renew for an additional Renewal Term unless You give Us written notice of termination at least 5 days before the end of the Term. If You purchased a subscription to the AM App directly from Us, then You may terminate by sending Us an email or using the “Contact Us” form on Our Website. If You purchased a subscription to the AM App through the Apple AppStore, You may cancel automatic renewals of the AM App by selecting “Manage App Subscriptions” in Your AppStore Account settings and selecting the subscription to the AM App to modify it. If You purchased a subscription to the AM App through Google Play, You may cancel automatic renewals in the settings under “My subscriptions” in the Google Play app or according to the current process used by Google Play.
4. SCOPE OF USE.
You may only use the AM App or the Free AM App for Your personal use and You may not modify, alter or adapt the AM App or the Free AM App or merge all or part of it with any other AM App or the Free AM App without Our prior written consent. You may not reverse engineer, reverse compile or decompile the software that operates the AM App or the Free AM App or try to access or discover its source code or any trade secret related to the AM App or the Free AM App. You may not remove or obscure any notice relating to Our Intellectual Property Rights. You must immediately notify us if You become aware of any unauthorised use of the AM App or the Free AM App. You acknowledge that We may incorporate technical features into the AM App or the Free AM App to enforce this Agreement.
You agree to pay the Initial Term Subscription Fee as specified in the Order. You must pay a Renewal Term Subscription Fee to use the AM App for a Renewal Term. We may increase the Fees at any time to reflect changes in Our standard rates and charges. The Fees are exclusive of all sales, use, value-added and other taxes and duties other than tax owed on Our net income. We may issue You an invoice that includes GST.
6. CREDIT CARD INFORMATION.
In Your use of the AM App, third party payment services providers may receive and implement updated credit card information from Your credit card issuer to prevent Your use of the AM App being interrupted by an outdated or invalid card. The provision of updated credit card information is provided to third party payment service providers at the sole election of Your credit card issuer. Your credit card issuer may give You the right to opt-out of the update service. Should You desire to do so, please contact Your credit card issuer. We do not store any user credit card information.
7. THIRD PARTY CONTENT.
We reserve the right at any time, from time to time, in our sole discretion, to alter or remove Third Party Content.
8. TECHNICAL SUPPORT.
If You have paid the First Term Subscription Fee and any Renewal Term Subscription Fee for the relevant Term or if You are using the AM App for a Free Term, We will provide technical consultation for the AM App and You will receive updates and new version releases of the AM App provided such updates and new release are generally made available to other customers using the AM App (Support Services). We only offer Support Services through the AM App, the Website or via email. We do not provide Support Services for the Free AM App
9. CONFIDENTIAL INFORMATION.
We and You agree not to disclose, duplicate or otherwise reproduce, directly or indirectly, each other’s Confidential Information in whole or in part. We and You further agree to use each other’s Confidential Information solely for the purposes of exercising each other’s rights stated under this Agreement or other rights that are clearly contemplated by this Agreement.
10. MEDICAL DISCLAIMER AND INDEMNITY.
You understand and agree that the AM App, the Free AM App and any other information You learn from the AM App, the Free AM App and Third Party Content are not intended, designed, or implied to diagnose, prevent, or treat any condition or disease, to ascertain the state of Your health, or to be a substitute for professional care. Not all activities described in the AM App, the Free AM App or Third Party Content are suitable for everyone. In particular, people with existing mental health conditions should speak with their health care providers before starting a meditation practice. While there is third party evidence that meditation can assist in the prevention and recovery process for a wide array of illnesses, as well as improving a wide array of performance and relationship issue, We make no claims or guarantees that You will experience these effects from using the AM App or the Free AM App. Do not use the AM App or the Free AM App while driving or performing other tasks that require concentration or attention. You understand and agree that You are solely responsible for Your use of the AM App or the Free AM App. We assume no responsibilities for injuries suffered while practising mindfulness, meditation or other services provided by the AM App or the Free AM App. Any health information and links to third party services from the AM App or the Free AM App are provided for Your convenience only. Content relating to medical information is not intended to be medical advice or instructions for medical diagnosis or treatment and no doctor-patient or physician-patient relationship is, or is intended to be created by the AM App or the Free AM App. Content is provided for informational purposes only, with no assurance that the content is true, correct or accurate. If You have any concerns about Your health, consult with a doctor, physician or health care professional. No action should be taken, delayed or deferred based on any content or information in the AM App, the Free AM App or Third Party Content. In consideration of You using the AM App or the Free AM App, You hereby agree to indemnify and hold harmless Us, Our officers, directors, shareholders, members, employees, and agents, and their respective successors and assigns, against any loss, liability, damage, cause of action, cost, or expense of any nature whatsoever, including without limitation legal costs. The content, information, videos, training instructions and other materials offered and made available as part of the AM App, the Free AM App or offered on the Website are for informational purposes only.
11. LIMITED WARRANTY.
Subject to clause 12 below, We license the AM App or the Free AM App to You “as is” without warranty of any kind. Our entire liability and Your sole remedy under this warranty is that We will use reasonable commercial efforts to correct or provide a work around for any reproducible error arising from a technical fault in the AM App, the Free AM App or the Website. We do not warrant that Your use of the AM App, Free AM App or Website will be uninterrupted or error free. To the fullest extent permitted by law, We make no representations or warranties of any kind, express or implied about the completeness, accurancy, reliability, suitability or availability with respect to the AM App, the Free AM App or Third Party Content or the information contained in the AM App, the Free AM App or Third Party Content for any purpose. Any reliance you place on such information is strictly at your own risk. The warranties in this clause 11 are in lieu of all other warranties, express, statutory, and implied, including, but not limited to, the implied warranties of accuracy, quiet enjoyment, non-infringement, merchantability and fitness for a particular purpose. The warranties set forth in this clause 11 are expressly subject to the limitation of liability in clause 14 and apply to You only and not to any third party.
12. AUSTRALIAN CONSUMER LAW.
Under the Australian Consumer Law included in the Competition and Consumer Act 2010 (Cth) (ACL), consumers have certain rights which cannot be excluded, including guarantees as to the fitness for purpose of goods or services. Nothing in this Agreement will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified. This Agreement must be read subject to these statutory provisions. Subject to any consumer rights You have under the ACL and to the extent permitted by law, We limit Our liability in respect of any claim under those provisions, at Our option to
(a) in the case of goods, replacing or repairing the goods or paying to have the good repaired and
(b) in the case of services, supplying the services again; or paying the cost of having the services supplied again.
13. INTELLECTUAL PROPERTY RIGHTS.
You agree that We own Our Intellectual Property Rights in the AM App or the Free AM App, including improvements, modifications or enhancements to the AM App or the Free AM App and that You obtain no right or interest in the AM App, the Free AM App or the Third Party Content any part of the AM App, the Free AM App or Third Party Content. You agree that We may use Our Intellectual Property Rights to further develop, improve and promote the AM App or the Free AM App. You agree not to challenge or make claims against Our Intellectual Property Rights.
14. LIMITATION OF LIABILITY.
We are not responsible for and We specifically disclaim all liability for any loss, liability, damage (whether direct, indirect or consequential), personal injury or expense of any nature whatsoever which may be suffered by You or any third party that may be attributable, directly or indirectly, to the AM App or the Free AM App or to Your use of them or the Website. We are not liable for any loss or damage that may arise in connection with Your use of the AM App, the Free AM App or the Website and in no event are We liable for indirect, special, incidental or consequential damages or for loss of profit or revenue, loss of anticipated savings, loss of chance, loss of opportunity, loss of goodwill, loss of customers, loss of data and loss of reputation even if We have been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy of any kind. You acknowledge and agree that the limitations of liability set forth in this clause 14 are independent of each exclusive or limited remedy set forth in this Agreement.
We may terminate this Agreement immediately by notice to You if You breach a provision of this Agreement and fail to remedy the breach within 14 days. Either party may terminate this Agreement if the other party becomes or threatens to become subject to any form of bankruptcy or insolvency administration. We may suspend or terminate Your use of the AM App or the Free AM App at any time as a result of Your breach of any terms of this Agreement or Your fraudulent activity. Upon termination, You are no longer permitted to use the AM App or the Free AM App and You must immediately cease to use it and You must delete or destroy all copies of the AM App in Your possession. Termination of this Agreement does not prejudice any rights or any claim that either party may have accrued against the other party up to the date of termination.
16. GOVERNING LAW AND ENTIRE AGREEMENT.
This Agreement and Your use of the AM App or Website and any non-contractual obligations arising out of or in connection with this Agreement, the AM App, the Free AM App or the Website are governed by the law applying in New South Wales. The courts having jurisdiction in New South Wales have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to any non-contractual obligations arising out of or in connection with this Agreement) and each party irrevocably submits to the non-exclusive jurisdiction of the courts having jurisdiction in New South Wales. This Agreement contains the entire agreement and understanding between You and Us about the AM App, the Free AM App and all prior agreements and representations made between You and Us are superseded by this Agreement.
17. MANDATORY MEDIATION AND DISPUTE RESOLUTION.
If a dispute arises regarding this Agreement or any non-contractual obligations arising out or of in connection with this Agreement (Dispute), a party must notify the other party in writing of the Dispute (Dispute Notice). Within 14 days of receipt of a Dispute Notice, the parties must meet in good faith and use their best endeavours to resolve the Dispute. If the Dispute cannot be resolved through good faith discussions, then the parties must refer the Dispute to mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation. The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (the Guidelines) and the Guidelines are incorporated by reference into this Agreement.
You acknowledge and agree that You have read, understood and consent to
A. Relationship This Agreement -- does not create any partnership, joint venture or agency relationship between You and Us.
B. No Authority Neither We nor You may enter into any agreements or incur any liabilities on behalf of the other party without the other party's prior written consent nor may represent to any person that it has any authority to do so.
C. Publicity Neither We nor You will make any public announcement or make any representation to any media representative about or concerning:
(i) this Agreement;
(ii) the performance of this Agreement by any party;
(iii) any matter related to this Agreement; or
(iv) the other party, without the other party's prior written consent.
D. Waiver No right under this Agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.
E. Assignment We may assign Our rights under this Agreement without Your consent. You may not assign Your rights without Our consent