1. Terms of Use
1.1 The Learning Hub which is accessed via secure website at https://learninghub.smilingmind.com.au/ (Hub), is owned and operated by Smiling Mind Pty Ltd ACN 161 428 459 (Smiling Mind).
1.2 By confirming 'Accept' and/or by accessing, downloading, installing, displaying or using the Hub (whichever is first), you agree to be bound by the terms and conditions set out below (Terms of Use).
1.3 In these Terms of Use, a reference to "we" or "us" is a reference to Smiling Mind.
1.4 A reference to "you" or "your" in these Terms of Use is a reference to any person accessing, viewing or using the Hub, including a Registered User.
1.5 These Terms of Use also incorporate and include the Smiling Mind Privacy Policy available at www.smilingmind.com.au/privacy-and-terms
2. Registration and Use
2.1 In order to use the Hub, your school will need to be registered to participate in one of Smiling Mind’s Programs and you will need to register as a user (Registered User) and create an account (Account).
2.2 You may only use the Hub: (i) for personal use; (ii) as part of a workplace program provided by Smiling Mind; (iii) if you are an educator within a school, early learning facility, or other educational institution to incorporate mindfulness meditations in the lessons you deliver to students; or (iv) as part of professional development if you are an educator at a participating educational institution.
2.3 You may access the Hub at any time, unless we have restricted access to perform necessary maintenance, updates or upgrades. Your ability to access the Hub will otherwise depend on factors outside our control and we do not guarantee that the Hub will be available at all times or accept any responsibility for factors outside of our control such as the quality of your internet connection, the type of computer or mobile device used to access the Hub and your software.
2.4 The Hub is available as a secure website and is available on devices running compatible modern internet browsers. We may change the operating platforms and/or system requirements to use the Hub from time to time. You may need to download or perform updates if you would like to continue your use of the Hub. We do not accept any responsibility if your use of the Hub is affected due to changed requirements and platforms.
2.5 You acknowledge that you have no rights in, or to, the Hub or the technology used to support the Hub, other than the right to use the Hub in accordance with these Terms of Use.
3. Account
3.1 At the time of becoming a Registered User you will be asked to create an Account. It is your responsibility to maintain the confidentiality and security of your Account and to ensure there is no unauthorised access. You are liable for any unauthorised use of your Account.
3.2 You agree to provide accurate and complete information when you become a Registered User and create your Account.
3.3 By creating an account on the Hub, if you do not already, we will also create an account for you on the Smiling Mind App to enable you to use this in conjunction with the Hub.
4. 4. Limitations on Use
4.1 By accessing and using the Hub you warrant and agree that you will:
(a) not use the Hub for any purpose not permitted under the Terms of Use;
(b) not use the Hub for any commercial purpose without our prior written consent;
(c) not copy, transmit, distribute, reproduce, licence, alter, reverse engineer, adapt or modify the whole or any part of the Hub in any way whatsoever;
(d) not hide, deface, alter or delete any copyright symbol, trade mark or other proprietary rights notice;
(e) not use the Hub for any activity which is obscene, indecent, offensive or defamatory;
(f) not hack into, change or otherwise knowingly transmit a virus or otherwise damage the Hub or any information contained within it;
(g) refrain from tampering with, hindering the operation of or making unauthorised modifications to the Hub;
(h) not use the Hub with an incompatible or unauthorised device;
(i) refrain from uploading onto the Hub any material, or use the Website, Application or Hub in any way which:
(i) infringes the intellectual property rights of any person; or
(ii) is unlawful or violates any law;
(j) not breach any other terms of the Terms of Use or our Privacy Policy.
5. Posting comments
The Hub may enable you to post comments (for example, on blogs, forums or other public areas). You are responsible for all comments that you post (or that are posted using your username and password). You must not post any comment that:
6 Technical information and Security
6.1 The transmission of data over the internet and/or cellular network is not always secure. Although we endeavour to secure the Hub, you access the Hub at your own risk and we accept no responsibility for any interference, loss, damage, or disruption to your computer or mobile device or otherwise which arises in connection with your use of the Hub.
6.2 You acknowledge that it is your responsibility to:
(a) implement sufficient procedures and virus checks (including anti-virus and other security checks) to satisfy your particular requirements for the accuracy of data input and output; and
(b) ensure that whatever you select for your use in the Hub is free of viruses or anything else that may interfere with or damage the operations of your computer or mobile device.
6.3 We do not warrant that functions available on the Hub will be uninterrupted or error free, free of viruses or programming bugs or interferences due to factors outside our control.
7. Intellectual Property
7.1 The Hub contains intellectual property including trade marks, confidential information and copyright, together with any goodwill or reputation and intellectual property rights subsisting in those things.
7.2 All intellectual property in the Hub is owned by Smiling Mind or its licensors and unless permitted by law, you must not:
(a) adapt, reproduce, store, distribute, transmit, print, display, perform, publish or create derivative works from any part of the Hub; or
(b) commercialise any information, products or services obtained from any part of Hub without our prior written consent.
8. Third Party Websites and Applications
8.1 The Hub may contain links to websites and applications owned and operated by third parties. We are not responsible for the operation, security levels, content or any other aspect of any third party websites and mobile applications.
8.2 Links to third party websites and mobile applications are provided solely for your convenience and do not indicate our endorsement or affiliation of them or their products and services.
8.3 We make no representations or warranties and are not liable for:
(a) the content or accuracy of any information contained in linked websites and applications and third party websites and applications; and
(b) any loss or damage suffered as a result of access to, or use of, these third party websites and mobile applications, or the reliance on the information contained within.
8.4 You must make your own enquiries as to the suitability of the content of third party websites and applications and the goods and services available for sale on them.
8.5 Third party websites and applications may be governed by their own terms and conditions (including their privacy policy), which will apply to your use and acquisition of their products or services. Accordingly, we strongly recommend that you read their terms and conditions.
9. Email Notifications
9.1 When you create an Account you will be asked whether you agree to us sending you communications (including communications promoting our products and services) via email (Email Notifications). If you have agreed to receive Email Notifications, you may choose to stop receiving them at any time by clicking the “unsubscribe” link at the bottom of our Email Notifications.
9.2 If you agree to receive Email Notifications the Hub secure website will send emails to your nominated email address and you acknowledge and consent to receipt of those Email Notifications.
10 Suspension or Termination
10.1 We reserve the right to suspend or terminate your access to the Hub at our sole discretion, including if we believe there has been a breach of these Terms of Use.
10.2 If we suspend or terminate your access to the Hub due to a breach of these Terms of Use, we will use reasonable efforts to notify you of the breach and ways in which you can remedy it.
10.3 Should you fail to remedy the breach within a reasonable time, you must immediately contact Smiling Mind to have your account removed.
10.4 We reserve the right to cease operating the Hub at any time, without notice, and to terminate this agreement under the Terms of Use.
10.5 You have the right to terminate this agreement under the Terms of Use by deleting ceasing use of the Hub.
11. Warranties
11.1 By creating an Account, you warrant and agree that:
(a) you are a Registered User;
(b) the Hub is for: (i) your own personal use, including your own professional development if you are an education professional; (ii) use in connection with a workplace program provided by Smiling Mind; or (iii) if you are an educator within a school or early learning facility, to incorporate mindfulness meditations in the lessons you deliver to students;
(c) you are responsible for any error, omission or cost arising from a failure or delay to provide all information necessary to create an Account or use of the Hub;
(d) you will keep your Account details including your username and password confidential and secure;
(e) you will be solely responsible for all use of your Account.
11.2 The Hub, and all content and services provided or made available through the Hub secure website, are made available to you on an 'as is' and 'as available' basis. While we endeavour to ensure the accuracy and completeness of the information contained on the Hub, that information may contain errors and omissions and is subject to change.
11.3 To the maximum extent permitted at law, we make no representations or warranties of any kind, express or implied, in relation to the content, accuracy, completeness, suitability, accessibility, security or reliability of:
(a) any material and/or information on the Hub;
(b) the performance and availability of the Hub;
(c) the loss, damage or corruption of any data or other material as a result of the use of the Hub.
11. 4 To the maximum extent permitted by law, we make no warranties or guarantees that the use of the Website or Application will achieve your desired state of clarity, calm and contentment or improve your mental state. The information, courses and programs provided on the Hub are intended for the benefit of the general public and are not medical advice or intended to replace or substitute advice from a qualified health care professional.
12. Limitation of Liability
12.1 We acknowledge that under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth)), certain statutory expressed and implied guarantees and warranties may be implied into these Terms of Use (Non-Excluded Guarantees). Nothing in these Terms of Use purports to modify or exclude the Non-Excluded Guarantees.
12.2 To the maximum extent permitted at law, the liability of Smiling Mind and our committee of management, officers, employees, agents, contractors, service providers, successors or assigns, for a failure to comply with a Non-Excluded Guarantee, is limited to, at Smiling Mind’s option:
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired,
and except in the case of a major failure (as that term is defined in the Australian Consumer Law), we can elect as between the remedies set out in paragraphs (a) and (b) above.
12.3 In circumstances where the Non-Excluded Guarantees do not apply, we and our committee of management, officers, employees, agents, contractors, service providers, successors or assigns exclude all liability for any loss or damage whatsoever (including but not limited to direct, indirect, incidental, special, consequential or exemplary damages) you may suffer arising out of, or in any way related to the service we provide (including in any way related to your use of the Hub).
12.4 You indemnify and agree to keep us indemnified against any loss or damage or costs incurred by us in connection with any breach by you of the Terms of Use or of any other legal obligation by you or your use of, or conduct on, the Hub.
12.5 You acknowledge that you do not rely on our skill or judgment or any representations made by us when deciding whether or not the Hub is fit for any particular purpose.
13. Privacy
13.1 You acknowledge that information about you, including information provided upon becoming a Registered User and creating an Account will be collected, held and used by us in accordance with our Privacy Policy www.smilingmind.com.au/privacy-and-terms.
13.2 You understand and agree that:
(a) the Hub is hosted in the cloud using the Amazon Web Services (AWS) platform and that information is disclosed to AWS to enable them to perform the hosting services on our behalf;
(b) We make every endeavour to host on AWS servers in Australia, including all user data being hosted on Australian servers, however some functions may be located outside of Australia and jurisdictions, including (USA, Japan, UK, Ireland) ; and
(c) we routinely disclose personal information that you provide to Us via the Hub, including your email address / member ID / school and your use of the Hub, to the Australian Council for Educational Research to enable them to analyse the Hub, including conducting an independent study into how the Hub might support aspects of student and staff wellbeing.
14. General
14.1 We reserve the right to amend, modify, add, delete and make corrections to the Terms of Use at any time as follows: (i) if the we consider that the change is likely to benefit you or have a neutral or minor detrimental impact on you, we may make any changes immediately without notifying you except by publishing the amended Terms of Use (as applicable) on the Hub; and (ii) if we consider that the change is likely to have a significant detrimental impact on your rights or obligations under these terms of Use and you have provided us with an email address, we will make the change after we have notified you of the change (solely by using the email address you have provided) and will display a notice on the Hub describing the change. Your continued use of the Hub after an amendment will mean that you agree to that amendment. You must stop using the Hub if you do not agree to an amendment.
14.2 If any part of the Terms of Use are determined to be illegal, invalid or otherwise unenforceable or void that part shall be severed to the extent necessary and the remainder of the Terms of Use shall continue in full force and effect.
14.3 No waiver of any breach of the Terms of Use will be construed as a waiver of any other breach of the Terms of Use.
14.4 The Terms of Use are governed by and construed in accordance with the laws of the State of Victoria, Australia and any claim made by either party against the other which in any way arises out of the Terms of Use will be heard in Victoria and you agree to submit to the jurisdiction of those courts. The Hub may be accessed throughout Australia and overseas. We make no representation that the Hub complies with the laws of any country outside Australia. If you access the Hub or Application from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the Hub or Application (as applicable). To the extent permitted by law, we exclude all liability for any failure of the Hub to comply with the laws of any jurisdiction outside of Australia.
14.5 For further information on using the Hub, please contact Smiling Mind at info@smilingmind.com.au.