Last Updated 4th March 2020

TERMS AND CONDITIONS

1. ABOUT THESE TERMS AND CONDITIONS

1.1.       These terms and conditions explain our obligations as service providers and your obligations as an Advisor and/or an Online Member.

1.2.       These terms and conditions apply to you when you use or otherwise access Mindshop Online and/or the other membership services offered by the Mindshop Group of companies.

1.3.       By using or registering to use Mindshop Online or the membership services offered by the Mindshop Group, you acknowledge that you have read, understood and agreed to these terms and conditions and the Privacy Policy located at https://www.web.mindshop.com/privacy-policy/ and have the authority to act on behalf of any person for whom you are using Mindshop Online.

1.4.       Where you access Mindshop Online or the membership services offered by the Mindshop Group on behalf of another person or entity, you warrant that you have the capacity to agree to these Terms of Use on behalf of that person or entity.

1.5.       Please contact Mindshop Group at support@mindshop.com if you have any questions about our terms and conditions.

2. DEFINITIONS

In these terms and conditions:

“Advisor” means the account holder. An advisor may be from a professional service firm or be an individual consultant, advisor or business coach.

“Confidential Information” means all information disclosed (whether orally, in writing or in any other form) by Mindshop to the Advisor (or the Advisor’s representative) or Online Member, or otherwise obtained or learned by the Advisor (or the Advisor’s representative) or Online Member in connection with providing access to Mindshop Online or the membership services that are of a confidential nature or which the Advisor (or the Advisor’s representative) or Online Member ought reasonably know is confidential and includes, without limitation, all information regarding pricing, fees and discounts offered to the Advisor or the Online Member.

“Data” means any data that the Advisor or Online Member inputs into Mindshop Online or provides to the Mindshop Group when accessing the Services.

“Fees” means the fees and charges payable by the Advisor as agreed from time to time.

“Forum(s) and Work Group(s)” means workshops, tutorials, webinars or discussion forums set up by Mindshop for the benefit of its Advisors and Online Members.

“Information” means any specifications, drawings, diagrams, business models, samples, data, computer programs, concepts, ideas, know how, memoranda or documentation or other technical or business information in written, graphic or other tangible or electronic form furnished or disclosed by Mindshop or any affiliated party in the course of Meetings, Forums, Training or Work Group activities and/or as a result of the Advisor or Online Member’s use of such Materials.

“Intellectual Property Rights” means all intellectual and industrial property rights, whether registered or unregistered, throughout the world including copyright (including future copyright), patents, trade-marks, designs, domain names, confidential information (and with respect to the Mindshop Group, the Confidential Information), trade secrets, know-how and database rights, any similar rights, and includes the right to apply for such rights;

“Material” means videos, specifications, papers, guides, models, tools, reports, case studies, literature, educational or academia documents, programs, business plans and models, diagnostics, Apps, software and other materials and documents published by Mindshop.

“Mindshop Group” means Mindshop International Pty Ltd (ACN 074 286 212), Mindshop Australia Pty Ltd (ABN 16 083 124 467), Mindshop UK Ltd (Company Reg: 03530512) and any Related Company.

“Online Member” means a Mindshop Online registered user who has been provided access by an Advisor and is authorised to access Mindshop Online and the Services.

“Permitted Use” means using Mindshop Material to train, support or guide team members or direct customers in accordance with clause entitled Acceptable Use.

“Mindshop Online” means the online education and learning platform provided exclusively to Mindshop Advisors which provides them access to training, coaching, discussion forums, tools, resources, material and the ability to coach and train their customers and team members.

“Related Company” means any subsidiary or associate of Mindshop International Pty Ltd (ACN 074 286 212) as defined by the Corporations Act 2001 (Cth).

“Services” means the services provided by the Mindshop Group that are designed to provide training, coaching, resources and networking opportunities to business advisors and leaders globally to enable them to drive higher performance in themselves and their firms

3. COMMENCEMENT AND TERM

3.1.       These terms and conditions, the Mindshop Privacy Policy located at https://www.web.mindshop.com/privacy-policy/ and the additional terms you agree to on registration, form the basis of an agreement (Agreement) between you and the Mindshop Group company specified at the time of registration (hereinafter “Mindshop”).

3.2.       For Advisors, the Agreement commences on the date that the Advisor signs up to use the Services. For Online Members, the Agreement commences on the date the Online Member is first provided access to Mindshop Online.  If the Online Member does not agree to the terms of this Agreement, they must not access Mindshop Online.

3.3.       The Agreement continues unless and until it is terminated by Mindshop or the Advisor (see the Termination clause for further details regarding termination)

4. USE OF MINDSHOP ONLINE

4.1.       Subject to the terms of this Agreement, Mindshop will grant Advisors and Online Members access to Mindshop Online and provide Services in accordance with the Advisor and/or Online Member’s subscription level. This right is non-exclusive, non-transferable, and limited by and subject to the terms of this Agreement

5. SUBSCRIPTION CHANGES

5.1.       Advisors (or an allocated administrator to their Mindshop Online subscription) may add Online Members to, or remove Online Members from, their account via the Mindshop Online user portal.

5.2.       Advisors may change their overall Mindshop subscription level to add or subtract further Online Members by direct email to their Regional Manager

5.3.       Changes in the Advisor subscription level and/or number of Online Members registered to an account will result in a variation in the Fees payable, as detailed to you at the time of registration and/or in the user portal (if applicable) and as amended from time to time.

5.4.       These terms and conditions will continue to apply notwithstanding any change to the number of Online Members registered to the Advisor’s account or any change to the subscription level.

6. USAGE RESTRICTIONS

6.1.       Use of Mindshop Online is subject to a fair usage limitation policy.  Pursuant to this policy, you may only download or use Mindshop Online for the Permitted Uses in accordance with these terms and conditions and may not use Mindshop Online or the Services in order to compete with Mindshop Group or in a manner which damages the Mindshop Group. This includes downloading material with the sole purpose of on-training other advisors in the market who would otherwise join Mindshop directly, using business models learnt through Mindshop to offer your own similar service or downloading excessive data and storing offline for use with clients or team members. Mindshop Group reserves the right to vary its fair use policy from time to time on the provision of notice to you.

7. PAYMENT

7.1.       In consideration for Mindshop Group providing the Services and access to Mindshop Online, the Advisor agrees to pay to Mindshop the Fees, which are comprised of:

(a)        the monthly subscription fee (payable in advance) agreed at the time of registration, as varied from time to time; and

(b)        a monthly fee (payable in arrears) for each additional Online Member (at the relevant applicable set tier where a fee is payable) registered to the Advisor’s account who accesses Mindshop Online for a set duration during the preceding month as agreed at the time of registration, as varied from time to time; and

(c)        applicable tax.

7.2.       Mindshop will invoice the Advisor on or around the first of each month.

7.3.       All Fees are to be paid via direct debit by the invoice due date during the term of the Agreement.

8. ADDITIONAL SERVICES, FREE TRIAL PERIODS AND DISCOUNTS

8.1.       Additional terms and conditions and fees may apply to some services that are offered by the Mindshop Group.  If so, these terms and conditions will be clearly communicated to you prior to the point of purchase.

8.2.       Mindshop Group may, from time to time, run temporary promotions, offer discounts or allow some services offered by Mindshop Online to be accessed free of charge.  Such promotions and discounts may also be subject to additional terms and conditions.  Unless otherwise stated, Mindshop Group reserves the right to vary, terminate or revoke any such promotion, discount and/or free access at any time

9. ACCOUNT CREATION AND SECURITY

9.1.       All Advisors must create accounts for their Online Members in order to access Mindshop Online.  Advisors may not create an account for an Online Member unless they have permission to create an account for an Online Member

9.2.       In order to create an account, Advisors must provide Mindshop Group with Online Member information requested during the account registration process.  Advisors warrant that all information that they provide during the account registration process is accurate and that they will keep such information up to date.

9.3.       Advisors must provide a login name and a password in order to access Mindshop Online.  Any password selected must not be easily guessable and should be kept secure.  Logon credentials must be kept confidential to the Advisor and must not be shared with any other person.

9.4.       Advisors and Online Members must immediately notify Mindshop Group of any unauthorised use of their logon credentials or any other breach of security.  Advisors and Online Members agree that they will be responsible for the use and any activity that occurs as a result of the use of their logon credentials.

10. ACCEPTABLE USE

10.1.     Subject to any applicable laws, Advisors and Online Members:

(a)        may only use Mindshop Online for the Permitted Uses, in accordance with this Agreement and any condition posted on Mindshop Online;

(b)        must not attempt to undermine the security, performance, functionality or integrity of Mindshop Online’s systems and networks or, where Mindshop Online is hosted by a third party, that third party’s computing systems and networks;

(c)        must not attempt to gain access to any materials other than those to which express permission to access has been granted;

(d)        must not access Mindshop Online to compete with Mindshop Group, cause disrepute or for any other use not contemplated by this agreement or expressly authorised by Mindshop Group;

(e)        must not violate the rights, trademarks, intellectual property or trade secrets of another party;

(f)         must not transmit, or input into Mindshop Online, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which they do not have the right to use);

(g)        must not use Mindshop Online or any communication tool available on it for posting or disseminating any material unrelated to the use of Mindshop Online, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, content that may be offensive to any other users of Mindshop Online;

(h)        must not attempt to modify, copy, adapt, reproduce, disassemble, de-compile or reverse engineer any computer programs used to deliver Mindshop Online or to operate Mindshop Online except as is strictly necessary to use it for normal operation;

(i)         agree to accept sole responsibility for the legality of their actions under the laws which apply to them;

(j)         agree that Mindshop Group and their directors, officers, employees, agents, contractors, successors, assignees and suppliers have no responsibility for the legality of the actions of Advisors and Online Members. Moreover, Advisors and Online Members agree to comply with the laws and regulations of the jurisdiction that applies to them.

11. COMMUNICATIONS

11.1.     Advisors and Online Members are exclusively responsible for ensuring that all communication they send using Mindshop Online is true, complete and accurate.  If the Advisor or Online Member is or ought reasonably to be aware that a communication has been corrupted, they must re-transmit or re-send that communication as soon as practicable.

11.2.     Mindshop Group is not responsible for the accuracy of anything another Advisor or Online Member posts or submits to Mindshop Online, nor is Mindshop Group responsible for the online or off-line conduct of other Advisors or Online Members.

11.3.     Advisors and Online Members agree not to use any of the communication services offered by Mindshop Online to transmit or communicate inappropriate, unlawful or offensive material or to discriminate based on race, gender, sexuality, age, disability or any other attribute protected by law.

11.4.     Advisors and Online Members agree not to engage in abusive, defamatory or harassing behaviour, or to engage in any other conduct that may bring Mindshop Group into disrepute.

12. MATERIAL AND INFORMATION

12.1.     Advisors and Online Members agree and acknowledge that all Materials and Information accessed by them via Mindshop Online are the property of Mindshop Group and are protected by Intellectual Property laws. Advisors and Online Members may only use Mindshop Group Materials for Permitted Uses in accordance with Mindshop Group’s fair usage policy

12.2.     Except where permitted under applicable laws, any of Mindshop Online’s content (including any substantial part of it) must not otherwise be used, stored, copied, reproduced, published, altered, adapted, distributed, printed, displayed, transmitted or commercialised in any form or by any means in whole or part without Mindshop Group’s prior written consent.  This means that Advisors and Online Members are not permitted to make Mindshop materials available to all their team members or customers offline, outside of the Mindshop Online environment. For the avoidance of doubt, the Permitted Use does not include any use of Materials or Mindshop Online that could be construed as being in direct competition with Mindshop.

12.3.     If an Advisor or Online Member corresponds or otherwise communicates with Mindshop Group, they automatically grant to Mindshop Group an irrevocable, perpetual, non-exclusive, royalty-free, world-wide license to use, copy, display and distribute the content of that communication, and to prepare derivative works or incorporate the content into other works.  This may include, but is not limited to, publishing testimonials, and developing ideas and suggestions for new or improved products or services.

12.4.     Title to, and all Intellectual Property Rights in, Data remain the property of the Advisor or Online Member. However, access to the Data is contingent on full payment of the Fees as and when they fall due.

12.5.     Advisors and Online Members must maintain copies of all Data that they input into Mindshop Online. Mindshop Group adheres to best practice policies and procedures to prevent data loss, but it does not make any guarantees that there will be no loss of Data.  Mindshop Group expressly excludes liability for any loss of Data no matter how caused (including without limitation if caused by negligence).

13. RELEASE

13.1.     Where an Advisor attends a Mindshop Group event, they acknowledge and agree that Mindshop Group may photograph the Advisor on film or video (collectively “recordings”) for use in promotional material and that Mindshop Group may:

(a)        edit and delete the Advisor’s image;

(b)        make any changes to the recordings made or images taken in its entire discretion, including (but not limited to) using the recordings that have been made with any other material; and

(c)        do any or all acts or omissions which would otherwise be an infringement of the Advisor’s moral rights. This consent is given for the benefit of Mindshop Group and for the benefit of its licensees, assignees and future owners of copyright in the recording of my performance.

13.2.     Advisors acknowledge that:

(a)        Mindshop Group owns all rights (including copyright) in the recordings made;

(b)        Mindshop Group is not obliged to use the recordings;

(c)        any use of the recording is an authorised use. The Advisor releases Mindshop Group from any liability to the Advisor for any infringement of any of their rights arising from your use of the recording, including (but not limited to) claims under tort law, contract law, and the Competition and Consumer Act 2010 (Cth) and equivalent state and territory legislation;

(d)        the release given by this clause is irrevocable and the benefit of this release may be transferred by Mindshop Group to its licensees and assignees.

14. CONFIDENTIALITY

14.1.     Advisors and Online Members agree that they:

(a)        will preserve the confidentiality of any Confidential Information obtained by them in connection with this Agreement;

(b)        will not disclose or make any Confidential Information available to any person, or use the same for their own benefit, other than as contemplated by this Agreement,

unless the Advisor or Online Member has the prior written consent of Mindshop Group or unless required to do so by law:

14.2.     The obligations of confidentiality contained in this clause do not apply to any information which:

(a)        is or becomes public knowledge other than by a breach of this Agreement;

(b)        is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

(c)        is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

(d)        is disclosed in accordance with and as contemplated by this Agreement.

14.3.     The obligations of confidentiality survive the expiry or termination of this Agreement (howsoever caused).

15. LIMITATION OF LIABILITY AND INDEMNITY

15.1.     The Advisor or Online Member acknowledge and agree that:

(a)        Access to the Services and Mindshop Online and all materials and information provided by Mindshop Group are provided “as is”, and Mindshop Group makes no representation or warranty, express or implied, including any implied warranty of merchantability or fitness for a particular purpose.

(b)        It is reasonable for Mindshop Group to exclude liability and for Advisors and Online Members to take measures, including insurance where appropriate, to mitigate or prevent any potential losses that may arise.

(c)        If any third party makes or threatens to make any claim (or if, in the opinion of Mindshop Group such a claim is likely) that the use by the Advisor or Online Member of Mindshop Online or of any Materials or other Information provided by Mindshop Group infringes any intellectual property right of such third party, Mindshop Group may, at its option, either secure the Advisor or Online Member’s right to continue using Mindshop Online, the Materials, make Mindshop Online or the Materials non-infringing or withdraw Mindshop Online or the Materials on written notice whereupon the Advisor or Online Member shall not be authorised to make any further use of the Materials.

15.2.     To the extent permitted by law, Mindshop Group’s liability under this Agreement is limited to in Mindshop’s absolute discretion, to such sum of moneys actually paid by the Advisor during the term of this Agreement.

15.3.     Mindshop Group is not liable to the Advisor or Online Member (whether in contract, tort, or otherwise) for any consequential, special, incidental or indirect loss or damage including loss of profit.

15.4.     Where any condition, warranty or right is implied by law, or there is a statutory consumer guarantee that cannot be excluded, Mindshop Group limits its liability for breach of, or other act contrary to, that implied condition, warranty or right or statutory consumer guarantee to the extent permitted by law. In particular, to the extent possible, Mindshop Group limits its liability in respect of any claim to, at Mindshop Group’s option: to the supply of its services again or the payment of the cost of having its services supplied again.

15.5.     Advisors and Online Members indemnify Mindshop Group and must keep Mindshop Group indemnified against all damages, losses, costs and expenses suffered by Mindshop Group arising out of any breach by the Advisor or Online Member of this Agreement or arising out of use of Mindshop Online or the Services.

16. WARRANTIES AND ACKNOWLEDGMENTS

16.1.     Advisors and Online Members warrant and agree that:

(a)        they have read and understood this Agreement and agree to comply with this Agreement at all times;

(b)        they have not been induced to enter into agreeing to this Agreement by reason of any promise, representation, warranty or guarantee or undertaking whatsoever other than as is expressly stated in this Agreement;

(c)        they have been given the opportunity to take legal and or financial advice on the terms of this Agreement;

(d)        they have obtained all third party approvals necessary for the Advisor or Online Member to agree to this Agreement;

(e)        Mindshop Group is not responsible for the online or offline conduct of Advisors and Online Members;

(f)         Advisors and Online Members will comply with all laws that apply to them and their use of Mindshop Online; and

(g)        the Advisor and Online Member is authorised to access the processed information and Data that is made available to them through their use of Mindshop Online (whether that information and Data is their own or that of anyone else).

16.2.     Mindshop Group does not warrant that the use of Mindshop Online will be uninterrupted or error free.  The systems used for accessing Mindshop Online can be unpredictable and may from time to time interfere with or prevent access to the Mindshop Online.  Mindshop Group is not responsible for any such interference or prevention of access to or use of Mindshop Online.

16.3.     The Advisor and Online Member remain solely responsible for complying with all applicable laws. It is the Advisor and Online Member’s responsibility to check that storage of and access to Data via Mindshop Online will comply with laws applicable to them (including any laws requiring the retention of records)

17. THIRD PARTY WEBSITES, THIRD PARTY SERVICES AND INTEGRATION SERVICES

17.1.     Mindshop Online may contain links to or integrate other web sites or services controlled by third parties. The Advisor and Online Member agree that Mindshop Group is not responsible for any act or omission of, or the content or privacy practices of websites or services that are controlled by third parties.

17.2.     Links to websites or services controlled by third parties are provided solely for the convenience of Advisors and Online Members and do not constitute, expressly or impliedly, an endorsement by Mindshop Group of the third party, or the products or services provided by the website or third party service provider.

17.3.     Access to sites and/or use the products and services offered by third parties solely at their own risk and they should make their own enquiries before relying on any content contained in such websites.

17.4.     Advisors and Online Members indemnify and release Mindshop Group from any claims that they may make against Mindshop Group in respect of the matters referred to in this clause howsoever arising including in contract, tort (including negligence), or otherwise including without limitation loss of an indirect or consequential nature.

18. TERMINATION

18.1.     Mindshop Group may terminate this Agreement and access to Mindshop Online at any time, if:

(a)        the Advisor or Online Member commits a breach of this Agreement that cannot be remedied; or

(b)        the Advisor or Online Member commits a breach of this Agreement that is capable of remedy but fails to remedy that breach within five (5) Business Days of receipt of a written notice from Mindshop Group requiring them to do so; or

(c)        the Advisor fails to pay any of the Fees to Mindshop on or before the due dates.

18.2.     Any termination under this clause:

(a)        will not afford the Advisor or Online Member a ground for any claim for a refund, damages, compensation or costs or expenses of any kind;

(b)        shall not prejudice the rights of either party in respect of any antecedent breach of this Agreement.

18.3.     Either Mindshop Group or an Advisor may terminate this Agreement at any time by giving two (2) complete billing months’ notice in writing to the other party. A firm who has multiple Advisors as part of their subscription of Mindshop may reduce that number by giving one (1) complete billing months’ notice in writing to the other party. Mindshop group does not allow ‘suspensions’ for any period of their subscription. For the avoidance of doubt, the Advisor will continue to pay the Fees for the remainder of the term if the Agreement is terminated in accordance with this clause, together with any outstanding Fees.

18.4.     An Advisor may terminate this Agreement, and access to Mindshop Online, for an Online Member who is registered to the Advisor’s account with effect within one business day by requesting in writing the deletion of a user from Mindshop Online or selecting the deletion option through their Mindshop Online portal. The date of termination will be logged from a billing perspective as the date at which the termination request was received Australia Eastern Standard Time (AEDT).

18.5.     An Online Member may request termination of their access to Mindshop Online through a direct request in writing to the Advisor who established their access and the Advisor hereby agrees to advise Mindshop Group of the termination of an Online Member’s access to Mindshop Online when they have received such notification. Only an Advisor can delete access for an Online Member who is registered to their account for Mindshop Online

18.6.     Upon termination of this Agreement, Advisors and Online Members must cease accessing Mindshop Online or any Services, platforms, branding, diagnostic tools, workshop material, tools or resources obtained from or provided or made available to them by Mindshop Group and must not hold themselves out as having any connection with Mindshop Group.

19. GENERAL

19.1.     Mindshop Group may assign this Agreement and its rights under this Agreement on written notice to the Advisor or Online Member (as applicable).  Advisors and Online Members may not assign this Agreement or its rights under this Agreement without the written consent of Mindshop.  Advisors and Online Members may only transfer the access to Mindshop Online under this Agreement to another employee, officer or agent of their organisation with the prior written consent of Mindshop.

19.2      If any provision or part of this Agreement is void or unenforceable for any reason, then that provision or part will be severed from this Agreement and the remaining terms shall be read as far as possible as if the severed provision or part had never existed.

19.3.     This Agreement supersedes and extinguishes all prior agreements, representations (whether oral or written).

19.4.     A failure or delay by Mindshop Group to exercise a power or right under this Agreement does not constitute as a waiver of that power or right, and the exercise of a power or right by Mindshop Group does not preclude its future exercise or the exercise of any power or right by or on behalf of Mindshop Group.

19.5      For the purposes of this Agreement, Mindshop contracts as agent and trustee for each of the Mindshop Group companies, their officers, employees and agents, each of whom gain the benefit of and may independently enforce the terms of this Agreement against the User.

19.6      All Data and Mindshop Online data (course progress, coaching actions, discussion posts, user profiles and any other relevant data) will be deleted for an Advisor or Online within one business day on either the day the Advisor ceases to be a paying Mindshop member or the day an Advisor has requested that the Online Member be deleted from Mindshop Online. From that moment any Data and Mindshop Online data will not be accessible by an Online Member or Advisor. Data will be securely held for emergency reasons ONLY for a period of 3 months from the date of deletion. Data within that 3-month window can only be recovered in exceptional circumstances at the discretion of Mindshop Group. After this 3-month period of time the Data will be permanently deleted from Mindshop Online.

20. SECURITY

20.1.     Mindshop Group uses a cloud-based server infrastructure hosted on the Amazon EC2 and Microsoft Azure platforms located in the Australian and UK regions. Data stored on Mindshop’s cloud servers is locally encrypted and use SSL security certificates, so all data transferred between an Advisors or Online Members browser and Mindshop’s servers is encrypted. An Advisor or Online Members browser must support the encryption security used in the connection with our servers. Please see https://azure.microsoft.com/en-us/support/legal/ and https://aws.amazon.com/agreement/ for specific policies on our cloud-based infrastructure platform.

21. THE GDPR

21.1.     Mindshop Group agrees to comply with the requirements of the European Union General Data Protection Regulation (the “GDPR”) if and to the extent that it is applicable to Mindshop Group and Mindshop Online and the services provided by them in accordance with Mindshop Group’s Privacy Policy.  Advisors and Online Members agree that Data entered into Mindshop Online may be processed by sub-processors including Salesforce.com, Dataloader.io, Dropbox, IBM Domino and Xero and transferred between North America, United Kingdom and Australia

22. VARIATION

22.1      Mindshop Group reserves the right to vary the terms of the Agreement, including these terms and conditions and the Fees, at any time on the provision of 14 days’ notice to you.  Your continued use of Mindshop Online following a variation constitutes acceptance of that variation.

23. SURVIVAL

23.1.     Clauses 12 to 19 and 24 survive the expiry or termination of this Agreement (howsoever caused).

24. GOVERNING LAW

24.1.     This Agreement shall be governed by and interpreted in accordance with the laws in force in the State of Victoria in the Commonwealth of Australia and the parties submit to the non-exclusive jurisdiction of Victorian Courts.