HEAVILY MEDITATED® MOBILE APP TERMS AND CONDITIONS OF USE

1. About the Application

1.1. Welcome to Heavily Meditated® (the 'Application'). The Application provides guided audio meditations comprised of the following: stream library of guided meditation audio files; save and ‘listen to’ guided meditation for offline listening; calendar notification of meditation reminders; personalised meditation tracker; ‘Inspo Deck’ function; and the ability to create and save personalised ‘Meditation Manifesto’ and any other functions associated with meditation forming part of the Application from time to time(together the 'Services').

1.2. The Application is operated by the Hope Dealers Pty Ltd [ACN 631 915 976] as trustee for Nowland Family Trust ABN 71 897 199 544 (hereafter referred to as "HD").  Access to and use of the Application, or any of its associated Products or Services, is provided by HD. Please read these terms and conditions (the 'Terms') carefully. By using, downloading, browsing and/or reading the Application, this signifies that you have read, understood and agree to be bound by the Terms.  If you do not agree with the Terms, you must cease usage of the Application, or any of its Services, immediately.

1.3. HD  reserves the right to review and change any of the Terms whether by updating this page or otherwise at its sole discretion. When HD updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

2. Acceptance of the Terms

2.1. You accept the Terms by downloading, using or browsing the Application. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by HD in the user interface of the Application.

2.2. Once you have downloaded the Application you will then be required to register for an account through the Application before you can access the Services (the 'Account'). By completing the setting of up an Account you will also have accepted the Terms.

3. Subscription to use the Services

3.1. In order to access the Services, you must first set-up an Account and then procure  a subscription to the Application (the ‘Subscription').

3.2. Application Account holders may access the Services under a Subscription in one of two ways:

(a) “Free-User subscription”: a free-of-charge program, which gives unlimited access to set number of meditation guidance audio files that will be determined from time to time; or

(b) “Paid subscription”: a subscription fee-based program (“Subscription Fee”), which gives access to all the Services and content including and beyond the "Free-User” offering. You will only have access to the full Services in the Application while your paid subscription is active and subsisting.

3.3. You may access the Application and make payment of any Subscription Fee via one of  HD’s App marketplace partners as set out in clause 4 below. You agree and acknowledge that HD can vary the Subscription Fee (or the offering under the “free-user” subscription) at any time and that such variation(s) will come into effect at the renewal time (or following the conclusion) of the existing Subscription Period.

3.4. In procuring and/or purchasing the Subscription (as the case may be), you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to obtain and/or purchase is suitable for your use.

3.5. As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including: (a) Email address; and (b) your Full Name.

3.6. You warrant that any information you give to HD in the course of completing the registration process will always be accurate, correct and up to date.

3.7. Once you have completed the registration process (including setting up an Account and selecting a Subscription), you will be a registered member of the Application ('Member') and agree to be bound by the Terms. As a Member you will be granted immediate access to the Services from the time you have completed the registration process and thereafter the subscription period will continue to run and renew automatically either monthly or annually (as the case may be that you have selected from time to time) until such time as you actively deactivate “auto-renew” in respect of the Application  (the 'Subscription Period'). [Note however that Members who elect to register and remain as “free users” of the Application will have a Subscription Period in perpetuity until such time as they may de-install the Application from their device. All of the Terms continue to apply to such “free-user” Members.] 

3.8. You may not use the Services and may not accept the Terms if:                           

(a) you are not of legal age to form a binding contract with HD; or

(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident  or from which you use the Services.

3.9. HD reserves the right to not process or to cancel your order for a Subscription or access to the Services in certain circumstances, for example, if your credit card is declined, or if HD suspects the request or order is fraudulent, or in other circumstances HD deems appropriate in its sole discretion. HD also reserves the right, in its sole discretion, to take steps to verify your identity in connection with any order made by you.

4. Payment

4.1. The method for procuring a Subscription and to make payment of the Subscription Fee is through the app store or distribution platform (like the Apple iTunes Store or GooglePlay or the Amazon Appstore) where the Application is made available (each, an “App Provider”). When you procure or purchase a Subscription you may be asked to supply information relevant to your transaction, such as your credit card number, the expiration date of your credit card and your address(es) for billing and delivery (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information.

4.2. If you choose to procure a Subscription, you will be charged so that your transaction can be completed in order for you to access the Application and/or the Services and you agree and authorize for your credit card to be charged, and for verification, pre-authorization and payment purposes, and to bear any additional charges that your App Provider, bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order.  You will  receive a confirmation email after we confirm the payment for your order. Your order is not binding on HD until accepted and confirmed by HD. All payments made are non-refundable and non-transferable except as expressly provided in these Terms.

4.3. Please note that once a purchase or procurement of a Subscription through the App Provider is completed, the sale is final, and we will not provide a refund. Your purchase will be subject to the App Provider’s applicable payment policy, which also may not provide for refunds.

4.4. All payments made in the course of your use of the Services are made using the methods outlined in this clause 4. In using the Application, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the terms and conditions for the payment methods for the App Providers, which are available on each of their Applications.

4.5. If you have any concerns or objections regarding charges, you agree to raise them with HD first and you agree not to cancel or reject any credit card or third party payment processing charges unless and until you have made a reasonable attempt at resolving the matter directly with HD.

5. Your obligations as a Member

5.1. As a Member, you agree to comply with the following:

(a) you will use the Services only for purposes that are permitted by:

(i) the Terms; and

(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;

(b) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your login details and password by any other person may result in the immediate cancellation of the Services;

(c) It is important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date.

(d) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify HD of any unauthorised use of your password or email address or any breach of security of which you have become aware;

(e) access and use of the Application is limited, non-transferable and allows for the sole use of the Application by you for the purposes of HD providing the Services to you.

(f) To use Heavily Meditated® via your smartphone or other device, your device must satisfy certain system requirements. These requirements can be found at the App Provider marketplaces (such as Google, Apple and Amazon App).

(g) you will not use the Services or the Application in connection with any commercial endeavours except those that are specifically endorsed or approved by HD or the management of the Nowland Family Trust ABN 71 897 199 544;

(h) you will not use the Services or the Application for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email  or unauthorised framing of or linking to the Application;    

(i) you agree that commercial advertisements, affiliate links, and other forms  of solicitation may be removed from the Application without notice and   may result in termination of the Services;

(j) You will not:

(i) use, display, mirror or frame the Services, or any individual element within the Services, the Heavily Meditated® name, any and all Heavily Meditated® trademarks, logos or other proprietary information of HD or the owner of such marks and logos, or the layout and design of any page or form contained on a page, without HD’s express written consent; or

(ii) access, tamper with, or use non-public areas of the Services, HD’s computer systems, or the technical delivery systems of HD or HD’s providers; or

(iii) attempt to probe, scan, or test the vulnerability of any HD system or network or breach any security or authentication measures;

(iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by HD or any of HD’s providers or any other third party (including another user) to protect the Services; or

(v) use any meta tags or other hidden text or metadata utilizing a Heavily Meditated  trademark, logo, HD URL or product name, including but not limited to the name Heavily Meditated®, without HD’s express written consent, and

(k) you acknowledge and agree that any automated use of the Application or its Services without the consent of HD is prohibited.

5.2. Appropriate legal action will be taken by HD for any illegal or unauthorised use of the Application.

6. Refund Policy

6.1. HD will only provide you with a refund of the Subscription Fee in the event they are unable to continue to provide the Services or if the HD management makes a decision, at their absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by the Member (the 'Refund').

6.2. You can turn off auto-renew at any time from your iTunes or Google Play account settings, but in this event no refunds will be provided for any unused portion of the term.

7. Copyright, Trademarks and other Intellectual Property

7.1. The Application, the Services and all of the related products of HD and/or Caitlin Cady Nowland (as the case may be) are subject to copyright. The material on the Application    is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services            and compilation of the Application (including but not limited to text, graphics, logos, button icons, video images, Application, audio clips, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by HD, Nowland Family Trust ABN 71 897 199 544 or their contributors.

7.2. Heavily Meditated®, any Heavily Meditated® logo and all other HD and/or Heavily Meditated®  product or service marks (including those related to or associated with the Application) are trademarks of HD and/or Caitlin Cady Nowland and/or Nowland Family Trust ABN 71 897 199 544, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:

(a) use the Application pursuant to the Terms;

(b) copy and store the Application and the material contained in the Application in your device's cache memory; and

(c) print pages from the Application for your own personal and non- commercial use.

HD and/or Caitlin Cady Nowland does not grant you any other rights whatsoever in relation to the Application or the Services. All other rights are expressly reserved by HD and/or Caitlin Cady Nowland.

7.3. HD and/or Caitlin Cady Nowland a retains all rights, title and interest in and to the Application and all related Services. Nothing you do on or in relation to the Application will transfer to you any of the following:

(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or

(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or

(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process).

7.4. You may not, without the prior written permission of HD and/or Caitlin Cady Nowland and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Application, which are freely available for re-use or are already in the public domain.

8. Privacy

8.1. HD takes your privacy seriously and any information provided through your use of the Application and/or Services are HD’s Privacy Policy, which is available on the Application and on our website at URL heavilymeditatedapp.com/privacy

8.2. You acknowledge and agree that your use of the Application and the Services is subject to our Privacy Policy.

9. Disclaimers

General Disclaimer

9.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

9.2. Subject to this clause, and to the extent permitted by law:

(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and

(b) neither Caitlin Cady Nowland or Hope Dealers Pty Ltd as trustee for Nowland Family Trust will be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or  damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or  the late   supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

9.3. Use of the Application and the Services is at your own risk. Everything on the Application and the Services is provided to you "as is" and "as available"  without warranty or condition of any kind. None of the affiliates, representatives, managers, officers, employees, agents, contributors and licensors of HD make any express or implied representation or warranty about the Services referred to on or contained in or forming part of the Application. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;

(b) the accuracy, completeness, currency or suitability for any purpose of any information on the Application, forming part of the Services, or any of its Services related products (including third party material, references and advertisements on the Application);

(c) costs incurred as a result of you using the Application, or the Services or any  of the products of either Caitlin Cady Nowland and/or HD); and

(d) the Services or operation in respect to links which are provided for your convenience.

9.4. Quality of Content - Whilst the information provided in the Application has been prepared and presented with all due care, HD does not:

(a) warrant or represent that the information contained in the Application is free from errors or omission; or

(b) provide any guarantee of the accuracy, completeness, currency or suitability for any purpose any information provided by other parties that may be also contained in or forming part of or referred to within the Application.

Specific Medical and Mental Health Disclaimer

9.5. The information provided in the Application is designed to provide helpful information on meditation, mindfulness and associated subjects the wellness sector. You acknowledge that HD and/or Caitlin Cady Nowland are not a health care provider nor are we medical or psychological or psychiatric professionals so that the Services nor any of our products can or should be considered medical or mental health advice and that HD cannot give medical advice or diagnosis.  Only your physician or other mental health care provider can do that.

9.6. The Application and the Services are not created or intended to be used, nor should it be used, to diagnose or treat any medical or psychological or psychiatric condition. The Application and the Services do not take into account the user’s individual health, medical, physical, psychological or emotional situation or needs. People with existing mental health conditions should speak with their or a health care provider before starting a meditation practice or guidance. HD and/or Caitlin Cady Nowland makes no claims, representations or guarantees that the Application or the Services provide a physical or therapeutic benefit.

9.7. Use of the Application is not a substitute for medical or mental health attention, treatment, examination, advice, treatment of existing conditions or diagnosis.  Every user of the Application and the Services should, before acting or using any of the information or guidance contained in the Application or forming part of the Services, consider the appropriateness of the information or guidance having regard to their own personal situation and needs. For diagnosis or treatment of any medical or psychological or psychiatric problem, the user must consult a medical or psychological or psychiatric professional.

9.8. If at any time a user of the Application thinks that they may be suffering from any medical or psychological or psychiatric condition they should seek immediate attention from an appropriate clinical practitioner.  A user should never delay seeking medical or psychological or psychiatric advice, disregard any advice, or discontinue any medical or psychological or psychiatric treatment because of information the user has engaged with or been exposed to in this Applications. You acknowledge that HD has advised you of the necessity of doing so.

9.9. Neither HD or Caitlin Cady Nowland shall be responsible for any specific health or medical or psychological or psychiatric needs that may require clinical supervision and are not liable for any damages or negative consequences from any treatment, action, application or preparation, to any person listening to or following the information or guidance in this Application. Any References or Citations provided for informational purposes only and do not constitute endorsement of any websites or other sources.

9.10. You acknowledge and agree that mediation, breathing exercises and all forms of exercise have risk. Whilst basic meditation is safe for the general population, the practices described in this Application do not take into account the users/Member’s individual health, medical, physical, psychological or emotional situation or needs and therefore may not be safe for all people. Accordingly, the user/Member is urged and advised to seek the advice of a medical professional before beginning any physical exercise, meditation, breathwork, health or diet regimen, routine, program or using any equipment referred to in this Application or as a part of the delivery of the Services.  It is the responsibility of the user/Member to ensure that by engaging in any activity discussed in this  Application, the user/Member will not exceed their limits while performing such activity.

9.11. HD and Caitlin Cady Nowland expressly disclaim all and any liability to any person in respect of anything and of the consequences of anything done or omitted to be done by any person in reliance, whether in whole or part, upon the contents of this Application or in using the Services and/or any website(s) or published literature referred to or cited in the Application.

9.12. Nothing in this medical and mental health disclaimer will limit any liabilities of HD or Caitlin Cady Nowland in any way that is prohibited by law, or exclude any liabilities that may not be excluded by law. If anything in this specific  disclaimer set out in clauses 9.5 through 9.11 (inclusive) is unenforceable, illegal or void, it is severed and the rest of the disclaimer remains in force.

10. Competitors

If you are in the business of providing similar Services for the purpose of providing them  to users for a commercial gain, whether business users or domestic users, then you are a competitor of HD. Competitors are not permitted to use or access any information or content on our Application. If you breach this provision, HD will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.

11. Future Functionality

You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by HD regarding future functionality or features.

12. Limitation of liability

12.1. The total liability of either HD or Caitlin Cady Nowland or the Nowland Family Trust ABN 71 897 199 544 arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.

12.2. You expressly understand and agree that HD, its trustees, affiliates, employees, managers, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

13. Termination of Contract

13.1. The Terms will continue to apply and/or the Subscription will continue until terminated by HD as set out in clauses 13.2 and 13.3 below, or until your Subscription Period expires in circumstances where you have properly and effectively turned-off the auto-renew function in respect of the Application on the platform of your App Provider.

13.2. HD may at any time, terminate the Terms with you if:

(a) you have breached any provision of the Terms or intend to breach any provision; or

(b) HD is required to do so by law; or

(c) the provision of the Services to you by HD is, in the opinion of HD no longer commercially viable.

13.3. Subject to local applicable laws, HD reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Application or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct  impacts the name or reputation of HD and/or the Heavily Meditated® brand or violates the rights of those of another party.

14. Indemnity

14.1. You agree to indemnify each of HD, Caitlin Cady Nowland and the Nowland Family Trust ABN 71 897 199 544 their affiliates, employees, agents, contributors, third party content providers and licensors from and against:

(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis)  incurred, suffered or arising out of or in connection with Your Content;

(b) any direct or indirect consequences of you accessing, using or transacting on the Application or attempts to do so; and/or

(c) any breach of the Terms.

15. Dispute Resolution

1. Compulsory:

If a dispute arises out of or relates to the Terms, either party may not   commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent  interlocutory relief is sought).

2. Notice:

A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

3. Resolution:

On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:

(a) Within 21 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;

(b) If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his  or her nominee or if that organization is no longer in operation or existence then a similar organization offering mediation services in Australia;

(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the  mediation and  without limiting the foregoing undertake to pay any amounts requested by the mediator as  a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;

(d) The mediation will be held in Australia, whether in person or by electronic communication methods.

4. Confidential

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.

5. Termination of Mediation:

If 28 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

16. Venue and Jurisdiction

The Services offered by HD are intended to be viewed predominantly by residents of Australia, but residents of other countries are anticipated to also view and use the Services. In the event of any dispute arising out of or in relation to the Application, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia or in a federal court of Australia having jurisdiction in respect of the laws of that state.

17. Governing Law

The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in  any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

18. No Waiver

If HD delays exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.

19. Force Majeure

We will not be liable to you for any lack of performance, or the unavailability or failure, of the Services, or for any failure or delay by HD to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond HD’s reasonable control.

20. Independent Advice

Both parties confirm and declare that the provisions of the Terms are fair and  reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality  or bargaining power or general grounds of restraint of trade.

21. Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

22. Contact Information

If you have any questions about these Terms or the Services please contact HD on hello@heavilymeditatedapp.com