Terms of Service
Smiling Mind ‘At Work’ or Smiling Mind Corporate (“App”) is a smartphone application and website created by Smiling Mind (ACN 161 428 459) (“us, we, our”).
By using the Smiling Mind At Work app (App) and / or website smilingmind.com.au (“Site”) and/or our payment platform at “Shopify.com.au” (Site) you agree to these Smiling Mind At Work Terms and Conditions as set out at smilingmind.com.au and updated from time to time ("Terms").
The Terms form a legal agreement between you and Smiling Mind. By accessing, browsing and/or using the App or Site or App (as applicable), you acknowledge that you have read, understood, and agree, to be bound by these Terms and to comply with all applicable laws and regulations, including export and re-export control laws and regulations. If you do not agree to these terms, do not use the App or Site.
These Terms are separate from, and in addition to, the Smiling Mind Terms and Conditions available at www.smilingmind.com.au ("General Terms"). The Terms apply only in relation to the services provided by Smiling Mind ("Services") and do not otherwise affect the application of the General Terms to all other services provided by Smiling Mind. To the extent of any inconsistency between these Terms and the General Terms in relation to the Services only, these Terms will prevail.
Agreed terms for consumers
- This page contains the Terms on which we supply mindfulness courses or other courses/services listed on the App and Site to you. Please read these terms carefully before ordering any mindfulness or other courses/services from the Site. When you order and/or purchase Services from our Site or create a ‘Smiling Mind At Work’ account ("Order"), you agree to be bound by these Terms. You will be asked to click "I accept" at the appropriate place prior to your purchase. If you do not click "I accept", you will not be able to access the Smiling Mind At Work Services.
Basis of service
- We consider these Terms and the Order set out the whole agreement between you and us for the supply of the Services.
- Please check that the details in these Terms and on the Order are complete and accurate before you commit yourself to utilising the Smiling Mind at Work Services. If you think that there is a mistake, please make sure that you ask us to confirm any changes in writing, as we only accept responsibility for statements and representations made in writing by our authorised employees and agents.
- Please ensure that you read and understand these Terms before you create or access a Smiling Mind at Work account ("Account") or otherwise submit an Order. You will be bound by the Terms once an Account is created or an Order is placed in accordance with clause
- Any samples, drawings, descriptions or advertising we issue, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published solely to provide you with an approximate idea of the Services they describe. They do not form part of the contract between you and us or any other contract between you and us for the supply of the Services.
- If any of these Terms are inconsistent with any term of the Order, the Order shall prevail.
- Placing an Order (including by creating an Account) is an offer by you to enter into a binding contract with us, which we are free to accept or decline at our absolute discretion.
- These Terms shall become binding on you and us when:
- We issue you with written acceptance of an Order with your email invite (or written acknowledgment of the creation of your Account); or
- You Submit your account via the Smiling Mind at Work App sign up process, whichever is the earlier, at which point a contract shall come into existence between us.
- Any quotation for the Services is given on the basis that a binding contract shall only come into existence in accordance with clause 1.5.
- Subject to clause 1.8, you may at any time before any agreed delivery date, amend or cancel an Order (including cancelling your Account) by providing us with written notice to email@example.com
- If you amend or cancel an Order your liability to us shall be limited to payment to us of the costs of the Service. However, where the amendment or cancellation is due to our failure to comply with these Terms you shall have no liability to us.
- To the extent permitted by law, we have the right to revise and amend these Terms from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities. You will be subject to the policies and terms in force at the time that you place an Order or create an Account, unless any change to those policies or these Terms is required by law or government or regulatory authority in which case it will apply to orders you have previously placed that we have not yet fulfilled. If the Services are ongoing, we will give you prior notice of any changes to these Terms and you can choose to cancel an Order or your Account (as applicable) without penalty before the new Terms affect you.
Quality of services
- Unless we are prevented from doing so by a force majeure event, we will provide Services which:
- Conform in all material respects with their description; and
- Are fit for any purpose we say the Services are fit for.
- These Terms apply to any replacement Services we supply to you in the unlikely event that the original Services do not conform with these Terms.
- You must provide us, in sufficient time, with any information and instructions relating to the Services that is or we believe necessary to enable us to provide the Services in accordance with these Terms.
- If you do not comply with clause 2.3, or you provide us with incomplete, incorrect or inaccurate information or instructions, we may cancel the Order (or your Account as the case may be) by giving you written notice, or we may make an additional charge of a reasonable sum to cover any extra work that is required.
- We only supply the Services for domestic and private use, and you agree not to use the Services for any commercial purpose whatsoever.
Provision of Services
- We will supply the Services to you from or on a specific date or the date set out in the Order.
- The Services will be supplied for a period as stated in the Order or otherwise until terminated in accordance with these Terms.
- We do not guarantee that the Services will be available at all times and may have to suspend the Services if we have to deal with technical problems, or to make improvements to the Services. We will let you know in advance where this occurs, unless the problem is urgent or an emergency.
- In the unlikely event that the Services do not conform with these Terms, please let us know as soon as possible after we have carried them out. We will endeavour to rectify any defects in the Services as soon as practicable in all the circumstances.
- All intellectual property rights (including copyright and design rights) in any materials and other documents or items in the App or Site or otherwise that we prepare or produce for you in connection with the Services (Our Intellectual Property) belongs to us absolutely at all times.
- We grant to you a limited personal, non-exclusive, non-transferable licence to use (but not to modify or reproduce) Our Intellectual Property for your internal domestic purposes.
- You may not in any circumstances use Our Intellectual Property or any other the materials, documents or other items provided to you by us for any commercial purpose.
Fees and payment
- In the event that any fees apply to the Services, such fees will be as set out in the quotation we provided to you or, if we have not provided a quotation or the quotation has expired, in our fees list in force at the time we confirm your Order. Fees are liable to change at any time, but price changes will not affect Orders that we have confirmed in writing.
- These fees include GST. However, if the rate of GST changes between the date of the Order and the date of delivery, we will adjust the GST you pay, unless you have already paid for the Services in full before the change in the rate of GST takes effect.
- We may ask for upfront payment by Paypal upon their terms and conditions or invoice you for the Services in advance when you place your order OR at any time after we have provided the Services to you OR monthly or in some other period in advance. The invoice will quote the Order Number. You must pay the invoice in cleared monies when you place an Order online using the payment methods detailed on the website.
- Without limiting any other remedies or rights that we may have, if you do not pay us on time, we may cancel or suspend our performance of the Services or any other outstanding Order until you have paid the outstanding amounts.
Limitation of liability
- Subject to clause 8.1, if either of us fails to comply with these Terms, neither of us shall be responsible for any losses that the other suffers as a result (subject to clause 7.2), except for those losses which we or you could reasonably foresee would result from the failure to comply with these Terms.
- Neither of us shall be responsible for losses that result from our failure to comply with these Terms including, but not limited to, losses that fall into the following categories:
- 2.1. Loss of income or revenue;
- 2.2. Loss of business;
- 2.3. Loss of anticipated savings; or
- 2.4. Loss of data.
- This clause does not include or limit in any way our liability for:
- Fraud or fraudulent misrepresentation; or
- Any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
- We will not in any case be responsible for a delay in performance of, any of our obligations under these Terms that is caused by events outside our reasonable control (“Force Majeure Event”).
- A Force Majeure Event is any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation), the following:
- Strikes, lock-outs or other industrial action; or
- Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; or
- Fire, explosion, storm, flood, earthquake, volcano, subsidence, epidemic or other natural disaster; or
- Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; or
- Impossibility of the use of public or private telecommunications networks.
- Our obligations under these Terms are suspended for the period that the Force Majeure Event continues, and we will extend the time to perform these obligations for the duration of that period. We will take reasonable steps to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms can be performed despite the Force Majeure Event.
- This Site may contain other proprietary notices and copyright information, the terms of which must be observed and followed. Information on this Site may contain technical inaccuracies or typographical errors.
- Information may be changed or updated without notice. We may also make improvements and/or changes in the products and/or the programs described in this information at any time without notice.
- We assume no responsibility for the accuracy of the information that is provided by us and use of such information is at the recipient's own risk. We provide no assurances that any reported problems may be resolved with the use of any information that we provide. Subject to clause 5.2, by furnishing information, we do not grant any licenses to any copyrights, patents or any other intellectual property rights that may subsist in the relevant information
- We may terminate the Services (in whole or in part in relation to your Account) at any time upon written notice to you.
- Subject to the Terms, we will provide the Services for the period according to the Order.
- You may close your account at any time by requesting a closure in writing to firstname.lastname@example.org however we are not required to provide you with a refund for the Services unless we have failed to fulfil the Terms of the Service
- You may not transfer, novate or assign any of your rights or obligations under these Terms without our prior written consent. Nothing in these Terms restricts or limits our right to transfer, novate or assign all or any of our rights and obligations under these Terms.
- All notices sent by you to us must be sent to Smiling Mind at email@example.com. We may give notice to you at either the email or postal address you provide to us in creating your Account. Notice will be deemed received and properly served 24 hours after an email is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an email, that the email was sent to the specified email address of the addressee.
- If any court or competent authority decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.
- If we fail, at any time while these Terms are in force, to insist that you perform any of your obligations under these Terms, or if we do not exercise any of our rights or remedies under these Terms, that will not mean that we have waived such rights or remedies and will not mean that you do not have to comply with those obligations. If we do waive a default by you it will not mean that we will automatically waive any subsequent default by you. No waiver by us of any of these Terms shall be effective unless we expressly say that it is a waiver and we tell you so in writing.
- The definitions in this clause apply to these Terms:
- Force Majeure Event: shall have the meaning given in clause 8.
- Order: shall have the meaning set out in clause 1, and include any order for the Services and the act of opening a Mind the Bump Account.
- Order Confirmation: shall have the meaning set out in clause 1.5.
- Services: the services that we are providing to you as set out in the Order.
- Terms: the terms and conditions set out in this document.
- We/us: Smiling Mind.
- Writing or written: includes email.