Terms and Conditions

Last Update: February 2019

These Terms and Conditions (“Terms”) apply to your use of our products and services (“Services”), including our website https://financialmind.wpengine.com.au (“Website”) and our proprietary software application (“App”). In these Terms, “Financial Mindfulness”, “us”, “we”, or “our” means Financial Mindfulness Pty Ltd (ACN 612 673 177).
These Terms incorporate the our Privacy Policy located at https://financialmind.wpengine.com.au/privacy-policy (as may be updated from time to time).

Please read this document carefully before accessing or using our Services. By accessing or using our Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms you must not access or use our Services.

1. Updates to these Terms
Financial Mindfulness may update or modify these Terms at any time and such updates and modifications shall be effective immediately upon us making the updated Terms available for access by you, including via our Website or App. If Financial Mindfulness makes modifications that materially affect your rights or obligations, we may provide you with notice of such modifications by any reasonable means. Notwithstanding the foregoing, you agree to check the Website and the App regularly to review these Terms. By continuing to access or use the Services after these Terms have been updated or modified you shall be deemed to have read and agreed to the updated and/or modified Terms.
You can determine when these Terms were last revised by referring to the “Last Updated” legend at the top of these Terms.

2. Additional terms
We may, in our absolute discretion, impose additional terms on the use of all or part of the Services (“Additional Terms”). Any Additional Terms will be published on the Website or the App, or communicated to you by us, and you agree that:

  • your use of the Services shall be subject to any Additional Terms published or communicated by us; and
  • those Additional Terms are hereby incorporated by reference into these Terms.

3. Nature of the Services
The Services aim to help and assist users to identify their own financial ‘stressors’ and individual financial personality so that they can improve their awareness, mindset and behaviours towards financial stress. Despite this, the Services are not tailored to, and do not take into account, your personal circumstances. The Services include the provision of:
(a) information and resources to educate users regarding how to manage their stress concerning financial matters; and
(b) an App to deliver content to users as well as a means for users to track their progress and achievements.

Educational Purposes
The information made available to you through the Services, including any methods, techniques or other education content, are for educational purposes only. We make no representation or guarantee that the use of the Services will, or is likely to, achieve any intended results. Furthermore, we make no representation or guarantee that the use of the Services is suitable for your purposes and it is your sole responsibility to determine whether or not you should use the Services.

5. No Financial Advice
The information and content provided via the Services is not financial advice and must not be construed as financial advice. Financial Mindfulness is not licensed under the Corporations Act 2001 (Cth) (or any other law) to provide financial advice or products. For the avoidance of doubt, the Services do not take into account your particular investment objectives, financial situation or investment needs. If you need financial advice, you should obtain independent professional advice from a suitably qualified financial advisor, accountant or other professional advisor having regard to your own objectives, financial situation and needs. You acknowledge and agree that Financial Mindfulness bears no liability for any loss or damage, howsoever arising and whether foreseeable or not, which results from your use of the Services in any way.

6. No Health Service
The information and content provided via the Services are not intended to be medical or health advice and must not be construed as such advice. Financial Mindfulness is not a licensed provided of medical or health services and does not provide professional advice or services of the kind offered by a medical practitioner or healthcare professional.
If you need medical or health advice, you should obtain seek the services of a suitably qualified medical practitioner or healthcare professional.

7. Fees

  1. You must have an active “Subscription” to use the Services and may only use the Services during the applicable term (“Subscription Term”).
  2. Our range of Subscriptions are displayed on our Website and/or the App. A Subscription will set out the attributes, features and functionalities of the Services that may be available to you, the fee payable (“Subscription Fee”), including the due date for payment, the length of the Subscription Term and any other matters that apply specifically to each type of Subscription.
  3. You must pay the applicable Subscription Fee to us for you to access and use the Services.
  4. Unless a Subscription states otherwise, Subscription Fees are payable at least seven (7) days in advance of the start of the applicable Subscription Term (including any renewed Subscription Term). You may lose access to and use of the Services if the applicable Subscription Fees are not paid in accordance with these Terms.
  5. If the Subscription Fee you pay is for an annual or other period, they must be paid to renew and extend the Subscription Term (and a renewal and extension shall be for a duration equal to the Subscription Term). If Subscription Fees are not paid in accordance with these Terms, then the Subscription Term will not be renewed or extended, and the Subscription Term will expire and lapse on the last day of then-current Subscription Term. Upon the expiration and lapsing of the Subscription Term, your Subscription will be terminated and become inactive, and you will lose access to and use of the Services.
  6. You acknowledge and agree that time is of the essence for all payments due and payable to us under these Terms. If a Subscription Fee that is payable to us is not received by the applicable due date, you will be in breach of these Terms.
  7. We may automatically deduct Subscription Fees from any authorised payment account or method provided by you for the purposes of renewing and extending a Subscription Term. It is your responsibility to notify us if you do not want Subscription Fees to be automatically deducted from your payment account.
  8. Subscription Fees must be paid in full and cleared funds (without deduction, withholding, set-off or counterclaim) to us via any one of the payment methods accepted by us.
  9. We may increase the Subscription Fees at any time but not on less than one (1) months’ notice and the increase shall apply for the renewal of the Subscription Term.
  10. If for whatever reason you use the Service without paying the Subscription Fees, we are entitled to recover any unpaid Subscription Fees from you, including any portion of such fees on a pro rata basis for the duration of the relevant Subscription Term for which you had access to the Service.
  11. To the extent your use of the Services gives rise to any tax obligations or liabilities on you or us, including goods and services tax payable in respect of the Subscription Fees or the Services, you are responsible for meeting and paying such tax liability (we may recover from you any payments that we make on your behalf in respect of such obligations and liabilities).
  12. We may retain any payment information and details provided by you for the purposes of operating the Services and its business, and as otherwise required by law.

8. Limited licence
We grant you a limited, non-exclusive, non-transferable, revocable, non-sub licensable, licence to access and use the content of the Services in accordance with these Terms. We may terminate this limited licence at any time for any reason without notice to you.

9. Intellectual Property
You acknowledge that we are the owner or licensee of all present and future right, title and interest in the Services (such as any content available through the Services and all underlying software (including the App)), including all forms of copyright, patents, trade marks, designs, trade secrets, know-how, confidential information and circuit layouts (“Intellectual Property Rights”). You must not in any way challenge, infringes or impair our ownership to these Intellectual Property Rights.

Except as expressly provided in these Terms, nothing shall be construed as conferring on you or any third party any licence or right to Intellectual Property Rights in the Services. You undertake not to:

  1. sell, license, transfer, dispose of, distribute or otherwise make available Services to any person, or publish or otherwise communicate the Services to the public; or
  2. copy, reproduce, modify, adapt, publish, communicate to the public or otherwise deal with (including the creation of derivative works) the Services other than in the normal course of using the Services in accordance with these Terms.

You grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide licence to use, modify or adapt, or authorise the use, modification or adaptation of and have used, modified or adapted on our behalf, any ideas, expression of ideas, text, graphics, messages, links, data, information and other materials you submit to us in relation to your use of Services and your dealings with us (together, “User Content”). The licence includes the right to make, use, sell, reproduce, publish, modify, adapt, prepare derivative works from, combine with other works, transact in respect of, distribute, display, perform and sublicense User Content in any form, medium or technology now known or hereafter developed.

You represent and warrant that you own or have obtained all the rights necessary to grant us a licence to use the User Content as described in these Terms. You further represent and warrant that the posting of User Content by you complies with the restrictions described in clause 10 (Acceptable use) below.

You must not remove or obscure, by framing or otherwise, change or delete any portion of the  Services, including any advertisements, Terms, any copyright or proprietary notices displayed through the Services from time to time.

10. Acceptable use
You must comply with all laws, rules and regulations applicable to your access or use of the Services. You represent and warrant to us that you will not:
post, publish, upload or transmit or otherwise make available, through or in connection with the Services:

  • any User Content which is unlawful or abusive in any way, including, but not limited to, any User Content that is defamatory, libellous, pornographic, obscene, threatening, invasive of confidentiality, privacy or publicity rights, inclusive of hate speech, or which would constitute or encourage a criminal offence, infringe the rights of any party, or give rise to liability or violation of any applicable law;
  • anything that could give rise to criminal or civil liability (including any material protected by Intellectual Property Rights, right of publicity, or any other proprietary right for which you do not have the express prior consent of the owner of such right or in violation of any contractual, fiduciary or other legal obligation), or that encourages conduct that would constitute a criminal offense;
  • any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment; or
  • any unsolicited or unauthorized advertising, promotional material, “junk mail,” “spam,” or other form of solicitation; or

use the Services:

  • to defame, abuse, harass, stalk, threaten or promote violence or other actions which are threatening toward any other person or entity, harvest or collect personally identifiable information, or otherwise violate the legal rights of others, including rights of privacy or publicity;
  • to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity, or state or imply that we endorse any of your statements or opinions; or
  • for any other fraudulent or unlawful purpose; or
  • interfere with or disrupt the operation of the Services, or use the Services in any way or take any action that causes, or may cause, damage to the Services or impair the performance, availability or accessibility of the Services;
  • conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Services without our express prior written consent;
  • access or otherwise interact with the Services using any robot, spider or other automated means, except for the purpose of search engine indexing;
  • license, sublicense, transfer, assign, reproduce, duplicate, copy, sell, resell, distribute, or exploit for any commercial purposes the Services (or any underlying software) or any access to or use of the Services;
  • modify, adapt, make derivate works of, translate, reverse engineer, decompile or disassemble the Services (or any underlying software);
  • infringe, challenge or impair a third party’s Intellectual Property Rights or remove any copyright, trademark or other proprietary rights notice from the Services or any materials available through the Services;
  • frame or mirror any part of the Services or any materials available through the Services without our express prior written consent;
  • systematically download or store content from the Services without our express prior written consent; or
  • use any information or content of the Services, including User Content belonging to another user or member of the Services, that has not been provided to, or is not intended for, you.

11. Subscription and Accounts
You will need to subscribe and register a Subscription account with us in order to access or use all or part of the Services (other than accessing and viewing any content that is publicly available on our Website). You represent and warrant that all information submitted to us in connection with such registration is complete, truthful and accurate. It is your responsibility to inform us of any changes to that information. We may reject, or require that you change, for any reason, any user name, password or other information that you provide to us in registering. We may suspend or terminate your Subscription, including your account, if we believe that any information which you have provided to us is in breach of these Terms.

Your user name and password are for your personal, non-commercial use only, and should be kept confidential. We do not permit:

  • anyone other than you to use the sections requiring registration by using your name or password; or
  • access through a single name or user account being made available to multiple users on a network or otherwise.

You (and not us) are responsible for any use or misuse of your user name or password (including the payment of all fees authorised in connection with your account), and you must promptly notify us if you believe there has been any confidentiality breach or unauthorised use of your user name or password, or your user account.

We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.

We collect, store, hold, use and disclose personal information in accordance with our Privacy Policy,

You acknowledge and agree that, even though you may access third party sites or services through links appearing on our Services, those sites and services are subject to the privacy practices of their owners. You should carefully review the privacy policies of those organisations before providing them with any personal information.

Modification and updates
We reserve the right, in our absolute discretion and with or without notice to you, to:

  • modify, suspend or discontinue the Services or any feature, functionality or content associated with the Services; or
  • charge, or amend, fees in connection with the use of any feature, functionality or content made available to you through the Services.

You agree that we are not liable to you or to any third party for any of the acts set out above.  Your continued use of the Services after such changes have occurred will indicate your acceptance of, and consent to, those changes.

However, where we have discontinued the Services in its entirety, we will make arrangements to notify you accordingly and, where appropriate, we will refund to you the pro rata amount of any Subscription Fees which you have paid to us that represents the unexpired portion of the Subscription Term from the date the Services are discontinued.

14. Third Party Websites
Links may be provided through the Website that may lead to websites, resources or tools maintained by third parties over whom we have no control.  We make no express or implied representations or warranties whatsoever regarding such websites, resources and tools and links to any such websites, resources and tools must not be construed as an endorsement of them or their content by us.

15. Security
We do not guarantee or warrant that the Services will be free of infection or viruses, worms, trojan horses or other harmful components. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Services for the reconstruction of any lost data.

16. Warranty, Disclaimers and Limitation of Liability
We provide the Service on a purely ‘as is’ basis without warranty of any kind and, to the maximum extent permitted by law, we expressly disclaim any and all liability and any warranties or guarantees, express or implied, regarding the Services, including, but not limited to, any implied warranties or guarantees of acceptable quality, fitness for a particular purpose, that the Services will be uninterrupted or error-free or non-infringement of third-party rights not otherwise disclosed in these Terms.

In using the Services, you acknowledge and agree that:

  1. the information and content provided to you via the Services by us should be used for informational purposes only;
  2. you must not use, or rely on, the Services in circumstances where there is a risk of injury or harm to any person or property, including yourself and your property;
  3. you must not use, or rely on, the Services to make any financial, legal or medical decisions affecting you or any other third party;
  4. you have voluntarily chosen to us the Services at your own risk;
  5. you must not represent to a third party that the Services has any feature or capability which is not expressly disclosed in these Terms or by the Services;
  6. the Services may not always be able to provide you with information or content;
  7. the Services may rely on third party content and information, and to the extent that such content and information is unreliable, inaccurate or invalid, the provision of the Services may be affected to a point where the Services cannot be provided (either at all, or to some extent, by us), in which event we will not be at fault or liable in any way for any such failure to provide the Services;
  8. the Services are intended to be accessed via an Internet connection via a compatible electronic device, and you are solely responsible for procuring such equipment and utilities in respect of your use of the Services; and
  9. as the Services are intended to be accessed via the Internet, the quality of the Services may be affected by matters outside our control.

Terms, conditions, warranties and guarantees implied by law (including
the Competition and Consumer Act 2010
(Cth)) which cannot be excluded shall apply to the Services (“Non Excludable Guarantees”). Nothing in these Terms restricts, excludes or modifies or purports to restrict, exclude or modify any Non Excludable Guarantees.

To the fullest extent permitted by law, we disclaim all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or in any way related to your use of the Services. This may include:

  1. any errors in or omissions including, but not limited to, technical inaccuracies and typographical errors;
  2. third party communications;
  3. any third party sites or content therein directly or indirectly accessed through links appearing in the Services, including but not limited to any errors in or omissions therefrom;
  4. the unavailability of the Services, or any portion thereof;
  5. your use of the Services;
  6. the unauthorised use of your User Content;
  7. your use of any equipment or software in connection with the Services; or
  8. your failure to comply with any of these Terms.

Where a Non-Excludable Guarantee exists, and we are able to limit your remedy against us for a breach of the Non-Excludable Guarantee, then our liability for that breach is limited, at our election, to:

  • in the case of goods: replacement of the goods or the supply of equivalent goods, repair of the goods, payment of the cost of replacing the goods or acquiring equivalent goods, or payment of the cost of having the goods repaired; and
  • in the case of services: to either resupplying the services or payment of the cost of having the services supplied again.

To the fullest extent permitted by law, we shall not be liable for any loss or damage that you might suffer no matter how it arises (including, without limitation, negligence, consequential loss or loss or damage arising from loss of data or profits) that is directly or indirectly related to your use of the Services.

Our maximum aggregate liability to you arising from, out of, or in the connection with these Terms, whether such liability arises from breach of agreement, negligence, tort or any other legal cause of action shall in no case exceed the fees paid by you to us during the twelve month period prior to the event giving rise to such liability

17. Indemnification
You agree to indemnify, defend and hold harmless Financial Mindfulness, our officers, directors, employees, agents, third party information providers and licensors, and service providers  from and against all losses, expenses, damages and costs (including reasonable legal costs and expenses) of any kind arising from, out of, or in connection with any breach of these Terms (including negligent or wrongful conduct) by you, including any claim that your User Content infringes the Intellectual Property Rights of a third party or has caused harm to a third party.

18. Confidentiality
You agree to maintain in confidence our Confidential Information and not to use or disclose our Confidential Information without our express written consent. You will protect our Confidential Information with the same standard of care that you use to protect your own confidential information, but in no event less than a reasonable degree of care. As used herein, “Confidential Information” means all information of a confidential nature in any form or medium that is not publicly available, and you acknowledge and agree that this includes business and technical information incorporated into the Website or Services or any software or other technology contained therein.

19. Termination

These Terms terminate automatically if we cease to operate the the Services. Termination shall not affect any rights or obligations accrued by either party during the term. In addition, the provisions of clauses 9 (Intellectual Property), 10 (Acceptable Use), 12 (Privacy), 16 (Warranty, Disclaimers and Limitation of Liability), 17 (Indemnification), 18 (Confidentiality) and 20 (Miscellaneous) shall survive any termination of these Terms.

Financial Mindfulness may immediately and without notice to you suspend or terminate your access to the Services, including your Subscription and Subscription account, if you are in breach of these Terms as determined by us. In the event of a suspension, Financial Mindfulness is not required to revoke the suspension until and unless you have remedied the relevant breach to our satisfaction. Furthermore, Financial Mindfulness may, in its absolute discretion, determine whether a breach of these Terms is capable of being remedied. Finally, you acknowledge and accept that under no circumstances will Financial Mindfulness be liable to you for any loss or damage suffered by you arising from, or in connection with, the exercise of the right to suspend or terminate your access to the Services in accordance with these Terms.

Financial Mindfulness may also immediately and without notice to you suspend or terminate your access to the Services, including your Subscription and Subscription account, in any of the following circumstances:

  1. non-payment of any fees payable by you in connection with your use of the Services, including the Subscription Fees;
  2. to investigate a suspected breach of these Terms by you;
  3. to comply with any laws or orders of a court or to assist any government agency or law enforcement body;
  4. in respect of any threatened of actual threat of legal action or demand for damages from any third party that arises in connection with your use of the Services; or
  5. for any other reason that is deemed necessary by us at our absolute discretion.

The exercise of any rights by Financial Mindfulness in these Terms as a result of a breach of these Terms by you are in addition to, and shall not prejudice, any other rights that we may have under these Terms or the general law in respect of your breach of these Terms, including any any rights that we may have to seek compensation from you for losses or damages that we suffer or incur.

20. Miscellaneous

  • In the event that you have a complaint or a dispute in connection with your use of the Services or us (“Dispute”), you agree that you must notify us of your Dispute and set out the full details of such Dispute. Subject to receiving all the information that we deem necessary from you about your Dispute, you agree to give us 30 days to respond before commencing any formal or legal process of redress, including the commencement of any proceedings in a court or tribunal. For the avoidance of doubt, whilst we will endeavour to respond to your Dispute within the stated timeframe, we cannot guarantee that this can be done for various practical, legal and administrative reasons.
  • In the event of any inconsistency between these Terms and any other matters, including content on the Website and the App, these Terms shall prevail to the extent of such inconsistency.
  • These Terms shall all be governed and construed in accordance with the laws of New South Wales, Australia. By accessing and using the Services, you submit to the non-exclusive jurisdiction of the courts of New South Wales.
  • Our failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Furthermore, any express waiver given by us shall only apply to the particular situation or circumstances in which the waiver was given and shall not affect our right to enforce these Terms in the future.
  • We may issue notices to you regarding matters relating to the Services by any means we deem appropriate, including via email, the App or posting it on the Website.
  • If any provision of these Terms is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, that provision shall be deemed to be restated to reflect (as nearly as possible) the original intention of the parties in accordance with applicable law and the remaining Terms shall remain in full force and effect.
  • We may assign our rights and duties under these Terms to any party at any time without notice to you.
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