Effective Date: 17 June 2019
Mindset Health Pty Ltd ABN: 11 617 368 957
Terms and Conditions.
Mindset Health Pty Ltd (Nerva) Terms & Conditions consist of the following sections:
– Your use of Nerva
– License Agreement
– Dispute Resolution and Arbitration
– The auto-renewable nature of subscription
This document (the “Agreement”) is a legally binding agreement between you and Mindset Holdings Inc, a company registered in the United States, and/or Mindset Health Pty Ltd, a company registered in Australia under ABN: 11 617 368 957, and its subsidiaries, that governs your use of the online and mobile services associated with Nerva, including but not limited to, www.nervaibs.com and all associated subdomains (the “Website”), and the Nerva: IBS Relief mobile application (“App”).
For ease of reference, all of the features and functionality of both the App and the Website, together with all of its content (whether accessible wirelessly, electronically or downloadable for printing), and either Mindset Health and/or Mindset Holdings shall be referred to herein as the "Nerva".
YOUR USE OF NERVA
Nerva is intended to enable you to help yourself. It is your own responsibility how you use Nerva and your own risk how your use of Nerva affects you. Under no circumstances can Nerva replace psychological, psychiatric, therapeutic or other professional diagnosing and/or treatment by trained professionals. Information and content provided through Nerva is not medical advice, and Nerva does not provide medical or diagnostic services or prescribe medication. Nerva can under no circumstances be held liable for the consequences of your use of Nerva.
You acknowledge and agree that the Nerva is a self-help application designed to help you manage your Irritable Bowel Syndrome (IBS) symptoms and that if you choose to access Nerva you are solely responsible for deciding which of the suggested techniques you put into practice and how to apply those techniques. Nerva is to be used by users who have been diagnosed with IBS by a medical professional. If you have not been diagnosed with IBS then you should not use Nerva. You also acknowledge and agree that Nerva is not intended to diagnose, treat or otherwise address any medical problem and the material on the app, whether posted by Nerva employees, or other users, is provided for your information and not as medical advice and should not be seen as a replacement for consultation with a doctor or other qualified healthcare professional. If you receive advice from a doctor or other qualified medical professional which conflicts with anything contained in the App then the former should take precedence. Nerva collects user-related data which cannot be used to diagnose irritable bowel syndrome, gut-related or any other illnesses.
We also cannot answer any medical queries either through in-app chat or via email or any other means.
By using Nerva you can and will be exposed to effects that might potentially cause very strong emotional reactions, physical responses and changes in you. These effects include, but are not limited to, the following:
- Informative sentences that might evoke memories or associations that Nerva cannot control or regulate and which might feel unsettling for you as a user.
- Language that might activate feelings or emotional moods that Nerva cannot control or regulate and which might feel unsettling for you as a user.
- Suggestions that lead to changes in the bowels or body which Nerva cannot control or regulate.
Any feeling of discomfort that you might experience in connection with your use of Nerva must and should make you stop using Nerva. If, having used Nerva, you experience mental or physical discomfort, including an urge to damage yourself or others, you must immediately seek professional help from a trained specialist.
Do not use Nerva for emergency medical needs. If you are experiencing a medical emergency, including thoughts of harm to yourself or others, please immediately contact emergency medical services such as 000, or a crisis hotline.
The use of Nerva could be harmful to persons who suffer from or have suffered from psychological illnesses (“Vulnerable Persons”). Vulnerable Persons, therefore, cannot use Nerva.
Vulnerable Persons are persons who have been admitted to a somatic or psychiatric hospital, casualty ward or similar institution due to a mental illness of any kind.
Vulnerable Persons are also persons who (a) are or have been diagnosed with or (b) have received or receive treatment for one or more of the following illnesses or comparable illnesses without having been admitted to a hospital: (i) Schizophrenia, (ii) multiple personality disorder, (iii) borderline (borderline psychosis), or (iv) psychosis.
If you are in doubt whether you are a Vulnerable Person you must seek guidance from a trained professional before using Nerva.
Nerva is not an application directed to children under 13 years of age or minors, and we do not knowingly collect personally identifiable information from children under 13 years of age. If you are under 13 years of age, you should not use this application, nor should you provide personal information to us. If we discover that a child under the age of 13 has provided us with personal information, we will immediately delete that child’s information from our files.
Nerva may be obtained via download through the Apple iTunes App Store (“iTunes”). This paragraph applies to any application version of Nerva that you acquire from iTunes. You are solely responsible for ensuring that your devices are compatible with iTunes.
This Agreement is entered into between you and Nerva. Apple, Inc. (“Apple”) is not party to this Agreement and shall have no obligations with respect to Nerva. Nerva, not Apple, is solely responsible for Nerva, including any maintenance and support, and the content thereof as set forth hereunder. However, Apple, along with their respective subsidiaries, is a third-party beneficiary of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary. If Nerva fails to conform to any applicable warranty, you may notify Apple and they will refund the purchase price (if any) of Nerva in accordance with their policies, and, to the maximum extent permitted by applicable law, the download service provider used to obtain Nerva will have no other warranty obligation whatsoever with respect to the application and, as between the download service provider used to obtain Nerva and Nerva, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to confirm to any warranty is Nerva's responsibility. We both acknowledge that Nerva, not the download service provider used to obtain Nerva, is responsible for addressing any end-user or third-party claims related to Nerva, including, but not limited to: (a) product liability claims, (b) any claim that Nerva fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar law. Further, we both acknowledge that, in the event of any third-party claim that Nerva or your possession or use of Nerva infringes on that third party’s intellectual property rights, as between Nerva and the download service provider used to obtain Nerva, Nerva will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you are not listed on any U.S. Government list of prohibited or restricted parties.
YOUR USE OF NERVA IS AT YOUR OWN RISK. THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON, THROUGH, OR IN CONNECTION WITH NERVA OR OTHERWISE PROVIDED BY US ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, SECURITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FREEDOM FROM COMPUTER VIRUS, OR WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO NERVA. WE DO NOT REPRESENT OR WARRANT THAT NERVA OR ANY INFORMATION OR SERVICES WE PROVIDE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT NERVA IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS OR RELIABILITY OF NERVA OR ANY INFORMATION OR SERVICES WE PROVIDE, OR ANY OTHER WARRANTY, THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH NERVA MAY BE OUT OF DATE, AND NEITHER NERVA NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS, PRODUCTS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NERVA OR THROUGH ITS SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
LIMITATIONS OF LIABILITY
NERVA DOES NOT ASSUME ANY RESPONSIBILITY FOR AND WILL NOT BE LIABLE, FOR ANY DAMAGE TO OR ANY VIRUS THAT MAY INFECT YOUR COMPUTER, EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING NERVA, OR YOUR DOWNLOADING OF OR ACCESSING ANY MATERIALS FROM NERVA. IN NO EVENT WILL NERVA, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF NERVA, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF NERVA, ANY WEBSITES LINKED TO NERVA, OR THE MATERIALS, INFORMATION, PRODUCTS OR SERVICES CONTAINED ON OR PROVIDED IN CONNECTION WITH NERVA, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN THE EVENT OF ANY PROBLEM WITH NERVA OR ANY CONTENT OR SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING NERVA OR THE CONTENT OR SERVICES.
Either party may terminate this Agreement by giving the other party written notice.
Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations in the rest of this agreement.
If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
- Includes or is accompanied by full and detailed particulars of the Dispute; and
- Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
- Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) parties must meet (virtually or otherwise) and seek to resolve the Dispute.
- Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
- Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
- Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
Electronic Communication, Amendment & Assignment
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
The User agrees that when it provides any consent, authority or agreement through Nerva does so as an electronic transaction and warrants that such transaction shall be binding on the party.
The User agrees that any request for a consent, authority or agreement it sends to other Users through Nerva as an electronic transaction may be sent directly from its email address.
The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
Notices must be sent to the parties’ most recent known contact details.
The User may not assign or otherwise create an interest in this Agreement.
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
Special Conditions. The parties may agree to any special conditions to this Agreement in writing.
Prevalence. To the extent this Agreement is in conflict with, or inconsistent with, the terms of any other Agreement
between the Company and the User, or any special conditions made under this Agreement, as relevant, the terms of those other agreements or special conditions shall prevail.
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
THE AUTO-RENEWABLE NATURE OF SUBSCRIPTION
Apple App Store:
– Subscription periods are 1 month or 12 months depending on your chosen subscription type. Every 1 or 12 months your subscription renews.
– Payment will be charged to iTunes Account at confirmation of purchase
– Subscription automatically renews unless auto-renew is turned off at least 24-hours before the end of the current period
– Account will be charged for renewal within 24-hours prior to the end of the current period.
©2019 Mindset Health Pty Ltd, All Rights Reserved