Terms of Service

1. INTRODUCTION

These terms of service (the “Agreement”) set out the relationship between HEALTHY MIND SOLUTIONS PTY LTD (ABN 97 645 516 310)(“Healthy Mind” or “Us” or “us” or “our”) and you (“You”, “you” or “your”), with regards to your use of our Services (including our Games, this Website and any activities and transactions occurring via the Games, Platform and/or Website), as amended from time to time by us. If you are a child, you represent that your parent or guardian has read this Agreement and consents to its terms.

2. DEFINITIONS AND INTERPRETATION

In this Agreement, unless the context otherwise requires, the following definitions shall apply:

“Account” means your user account that may be required to access part of the Services or to otherwise login to the Services;

“Fee(s)” means fees payable to access of the Services and/or access part of the Services;

“Games” means our computer, console, online or mobile application games;

“House Rules” means the rules that govern user participation on our website and social media forums;

“Intellectual Property Rights” shall mean patents, trademarks, discoveries, inventions, improvements, processes, technology, data, copyright, database rights, design rights, domain names, trade secrets, confidential information, or any other proprietary or intellectual property rights, whether registered or unregistered;

“Personal Information” has the meaning as defined in the Privacy Act 1998 (Cth);

“Platform” means the digital platform(s) provided by us or by third-party services providers on our behalf (such as, but not limited to, the Steam store, Apple iOS App Store, the Amazon App Store and the Google Play Store);

“Privacy Policy” means our privacy policy located on our Website;

“Promotional Offer” means a promotional offer from us to you as set out in clause 7;

“Services” means the Games, website, forums and related services provided by us to you on the Platform and/or the Website;

“Supported Device” means the supported internet-connected devices as set out on the Website and/or Platform, and as may be amended from time to time by us;

“Website” means our website accessible at: https://airbornevr.app/; and

“Virtual Items” means any virtual good, currency, item, object or entitlement for use in our Services.

3. INFORMATION ABOUT US
   • We provide the Services and are the owner and operator of the Website, we may also operate the Platform.
   • Your access to the Services, Website and Platform is permitted on temporary basis and we are not liable if the Services, Website and/or Platform, or parts of the Services, Website and/or Platform are unavailable or restricted to you for any period of time or at any time.
   • Your use of the Services is governed by this Agreement, your Account details, our House Rules, our Privacy Policy and any relevant third-party terms and conditions, such as, but not limited to, any that govern Platforms. Please take the time to read these terms carefully as they include important terms that apply to you. By in any way using or accessing the Services, you agree to be bound by these terms. Should you not understand any of the Agreement or not accept any part of the Agreement, then you should not use the Services.
   • We may amend these terms from time to time at our sole and absolute discretion. The current version of this Agreement was lasted updated on 29 October 2021. We reserve the right to withdraw any Services without notice to you.

4. THE SERVICES
   • To access the Services, you must have a Supported Device that is connected to the internet and allows you to access the Services, and, subject to any Promotional Offer, pay any applicable Fee.
   • You may be required to create an Account via the Website or a Platform. In order to create an Account you must be at least eighteen (18) years of age or have the permission of your parent/guardian to create an Account as required by your jurisdiction and in compliance with relevant classification laws. You are also required to provide a valid email address and may be required to provide valid payment method details (such as a valid credit or debit card).
   • Subject to your meeting the requirements of clauses 4.1 and 4.2 and complying with all the terms of this Agreement, we or the Platform shall generate an Account for you and provide login details that shall enable you to access the Services.
   • The Services may only be used by you for your own personal, non-commercial use and is not to be shared with individuals beyond your household. You agree not to sell lend, lease, sublicense or re-distribute the Services.
   • You are responsible for your acts and omissions, as well as for any unauthorised use of your Account. You shall take all reasonable steps to ensure that that third parties do not gain unauthorised access to your Account. We are in no way responsible for use by any unauthorised user of your Account.
   • You shall not interfere with the use of the Services that are provided to other users of the Services. The acquisition or use of passwords of other customers of ours is strictly prohibited. Use of tools that compromise security, such as, but not limited to password cracking programs, is strictly prohibited.
   • When using the Services you agree that you will not:
     • violate any state, federal or foreign laws or regulations;
     • facilitate fraudulent or illegal activity of any kind;
     • use the Services for any commercial purpose without our prior written express consent;
     • be located in a country subject to an embargo by the Commonwealth of Australia or the United States of America;
     • be subject to any list of prohibited or restricted parties by the Commonwealth of Australia or the United States of America;
     • use or promote any exploits, modifications, cheats or other unauthorised means to interfere with the Services or acquire an undue advantage when using the Services; and
     • data scrape, data mine, data harvest or conduct any other systematic data collection activity.
   • You agree that the Services may evolve at any time. We may require that you accept changes or updates to the Services, and you agree that we may change or update the Services without notifying you.
   • You agree that we and/or a Platform may remove or suspend any content from the Services at any time without notice to you. We will not be liable to you or third parties for any losses as a result of such removal or suspension of content. We furthermore reserve the right to cancel any content for reasons such as, but not limited to an error with the Services.
   • You agree that there may be times when the Services are not available for technical or other reasons, including maintenance.
   • You agree that we are not under any obligation to add any enhancements to the Services, or fix any errors in the Services. Furthermore, we are not responsible for providing any training or advice to you in relation to the Services.

5. FEES AND PAYMENT
   • Fees that apply to the Services are stated on the Website and/or Platform and we currently accept mobile payments as set out on the Website and/or Platform.
   • Failure to pay any Fees when due may result in your immediate suspension and/or termination from the Services.
   • We are not liable for any loss, delay or failure in accessing the Services that you or a third party suffers that is due to incomplete or inaccurate payment information.
   • We and/or the Platform may suspend your Account if it is pending credit or debit card verification, such cards must be cleared by us or the Platform before the Services will be accessible to you.
   • All fees are GST inclusive unless otherwise expressly stated.
   • All amounts are quoted in Australian Dollars (AUD) by default unless otherwise stated on the Website or Platform. Currency conversion fees or FX rates used to ascertain the amount you will pay for the Services are determined by your mobile payment or your credit or debit card provider and we accept no liability for differences between the prices of the Services and the amounts you are charged.

6. VIRTUAL ITEMS
   • Our Services may offer you the ability to purchase or earn Virtual Items which you may earn via gameplay or purchase with legal currency. We may impose limits on Virtual Items.
   • You are granted a non-exclusive and non-transferable, revokable, non-assignable limited license to use the Virtual Items.
   • We accept no liability whether in contract or in tort (including negligence or breach of statutory duty) or otherwise for any loss or damage to your Virtual Items caused directly or indirectly by us or any third-party.
   • You are responsible for ensuring you have authorisation to purchase any Virtual Items and use any chosen payment method, including obtaining, if required, account holder/parent/guardian approval.
   • Virtual Items only exist within the Services. Virtual Items cannot be exchanged for real services, goods or money from us or from any third-party.
   • Virtual Items may be amended, altered, controlled, and/or removed from the Services by us without notice or liability to you.
   • You acknowledge that any balance of any Virtual Items is not indicative of any stored value in such Virtual Items and that they have no “real-world” monetary value.
   • If, pursuant to our Privacy Policy, you request that personal information about you be deleted, you will also permanently lose your Virtual Items. We will not issue any refunds for such loss of Virtual items nor are we able to restore such Virtual Items.
   • If your use of the Services is terminated by us pursuant to clause 12 then you will forfeit any Virtual Items you have acquired and under no circumstances will we issue a refund to you or compensate your loss.

7. PROMOTIONAL OFFERS
   • Any Promotional Offer is subject to any additional terms and conditions that apply in respect of that Promotional Offer and it is your responsibility to familiarise yourself with the terms of that Promotional Offer.
   • Restrictions may apply with respect to combinations of Promotional Offers.
   • In the event of any inconsistency between a Promotional Offer’s additional terms and conditions and this Agreement, the Promotional Offer additional terms and conditions shall take precedence over this Agreement.
   • We may change, suspend or withdraw any Promotional Offer at any time or change eligibility criteria at our sole and absolute discretion.

8. LICENSE
   • In consideration of your payment of the Fees, we grant to you, and you accept, subject to the terms of this Agreement, a non-exclusive and non-transferable, revokable, non-assignable limited license to use the Services on for your own personal, non-commercial, entertainment purposes only. You agree not to use the Services for any other purposes. You agree that you shall not grant sub-licenses, in whole or in part of any of the rights granted to you under this Agreement.
   • You shall not download, copy, adapt, reproduce, distribute, archive, modify, publish, offer for sale or rental, perform or create derivative works from the Services, the Platform or the Website. You shall not attempt to circumvent any anti-piracy measures utilised by the Services.
   • The license granted under clause 8.1 does not entitle you to access, copy, modify or use the source code of the Services, the Website or the Platform. You agree that you shall not cause or permit the reverse-engineering, disassembly, translation or decompilation of the Services, the Website or the Platform or analyse or otherwise examine the Services, the Website and the Platform for the purpose of reverse-engineering.
   • You shall not use the Services for any public performance of any kind.
   • You shall not permit any third party (beyond your household as permitted by your Account) to use the Services on your behalf in any manner whatsoever.
   • Other than the license granted under clause 8.1, no right, title or interest shall be transferred to you, and any other use by you not consistent with the provisions of this Agreement shall constitute a material breach of this Agreement.

9. PRIVACY POLICY AND CONFIDENTIALITY

Any Personal Information provided during the use of the Services will be treated in line with our Privacy Policy, and which forms a part of this Agreement. By using the Services, you are consenting to the contents of the Privacy Policy. Subject to our Privacy Policy, we have the right to use, distribute, copy and disclose any material that you upload to the Services, such material shall be considered non-confidential and non-proprietary. We may also disclose your identity to a third party where that party claims material you have posted or uploaded violated their rights, such as, but not limited to, their right to privacy or their Intellectual Property Rights.

10. WARRANTIES AND DISCLAIMERS
    • The Services are provided “as is” without warranty or representation of any kind either express or implied including without limitation any warranties of merchantability, quality, fitness for a particular purpose and non-infringement.
    • The quality of the Services and your ability to use the Services may vary depending on the Supported Device you are accessing the Services on and/or your internet connection. Not all Services will be available in all formats, in all geographical locations or at all times. Internet usage charges are your own responsibility and we accept no liability for internet charges, including cellular data charges, you incur using the Services.
    • Whilst we shall use reasonable endeavours to try and prevent them, the Services may contain errors, inaccuracies or faults and may not be current or complete. Functionality and features may differ between Supported Devices and Platforms.
    • To the maximum amount permitted by law, we shall not be liable for any direct or indirect losses or claims as a result of our failing to provide the Services, or for any downtime, suspension or cancellation of the Services or any content in whole or in part.
    • We exclude all implied warranties and terms, whether statutory or otherwise, relating to the subject matter of this Agreement, subject to Australian consumer protection law.

11. INTELLECTUAL PROPERTY
    • Subject to clause 11.3, you recognise and acknowledge that the Services (including our Games, the Website and the Platform), all content and other works or subject matter in our Games or on the Website or Platform is comprised of our Intellectual Property Rights and that of our licensors, service providers and third-party partners, and that we and they as the case may be retain ownership of all such Intellectual Property Rights.
    • You shall ensure that when using the Services that you do not do anything which could in any way harm our Intellectual Property Rights, our licensors, service providers, third-party partners and/or any other third parties.
    • We may permit you to upload or post content to your Account. You are solely responsible for all of your content residing on the Services. You shall be solely responsible for ensuring your content is not defamatory, obscene, offensive libellous, invasive, menacing, racially or otherwise objectionable or otherwise illegal. Where we have grounds for suspecting that content violates the terms of this Agreement and our policies we will remove that content from the Services. You represents and warrant on an on-going basis that you have the right and ability to provide us with your content uploaded to the Services during the course of this Agreement and that none of your content infringes any Intellectual Property Right of a third party and/or violates applicable laws and regulations. Where you post or upload content to us, you give us a non-exclusive, royalty free, irrevocable and perpetual licence to use, display, copy, adapt, sub-license, modify and communicate such content to the public and in connection with the Services.

12. TERMINATION AND SUSPENSION OF ACCOUNTS
    • We and/or the Platform may terminate your Account or this Agreement at any time for convenience and without notice to you. Where we and/or the Platform terminate for convenience your access to the Services will end immediately.
    • Without in any way limiting any other remedies, we and/or the Platform are entitled to suspend, limit, modify, terminate or delete Accounts where you are, or we suspect you are, not complying with this Agreement. We and/or the Platform are not required to give you notice of such action and your access to the Services may stop immediately. No refunds will be provided to you in such instances.
    • Should we terminate or suspend your Account under clause 12.2 you agree to not create a new or replacement Account.
    • You acknowledge that should the Account be suspended or terminated by us that you will lose all information, associated with the Account, and that we are in no way liable for such loss of information.
    • Subject to any Platform third-party terms and conditions, you may terminate your Account at any time and, other than where we terminate your Account, you will be entitled to use the Services up to your date of termination.

13. THIRD PARTIES
    • The Services may provide links to third-party websites, platforms or software, we accept no liability or responsibility for the availability or content of those third-party websites, platforms or software. You may need to update third-party software from time to time in order to continue accessing the Services.
    • Your use of the Services may require third-party software or the use of third party Platforms that is subject to third-party licenses. You agree you will:
      • comply with any terms of service, policies and guidelines of the applicable digital store from which you obtain our Services, such as, but not limited to the Steam store, Apple iOS App Store, the Amazon App Store and the Google Play store; and
      • comply with the terms of any third-party services providers that apply when using our Services, such as, but not limited to Facebook and Twitch’s terms of use.
    • You agree that we are in no way liable or responsible for the actions, in-actions or activity of any other third party including any other user of the Services.

14. LIABILITY
    • We shall not be liable to you under this Agreement, whether in contract or in tort (including negligence or breach of statutory duty) or otherwise, for any loss or damage including: (a) any loss of profit, loss of revenue, loss of contracts, loss of anticipated savings, loss of goodwill, loss of opportunity, loss of data, loss of reputation or loss of business, whether caused directly or indirectly; and (b) any special, indirect, punitive or consequential loss, cost, damages or expenses whatsoever, even (in each case) if any such loss or damage was reasonably foreseeable or you had been advised of the possibility of such loss, cost damage or expense. You agree that each of the heads of loss in sub-clauses (a) and (b) above (inclusive) are separate terms and are intended to be severable.
    • Notwithstanding anything contained in his Agreement, we do not exclude or limit our liability to you under Australian consumer law and nothing in this Agreement purports to modify or exclude any warranties, conditions, undertakings, guarantees or other rights under such law that cannot be modified or excluded.
    • You agree that we are in no way responsible for any loss, damage or corruption which may happen to your data, including any Virtual Items, or devices as a result of using the Services.
    • You agree to indemnify us (including our directors, officers, employees, contractors, partners and agents) in respect of any loss or damage we (including our directors, officers, employees, contractors and agents and the Platforms) suffer as a result of your: (a) breach of this Agreement; (b) your misuse of the Game; and (c) your violation of applicable law connected to your use of the Game
    • Subject to Clauses 14.1 and 14.2, our aggregate and entire liability to you for losses or damage howsoever arising out of or in connection with this Agreement (including without limitation negligence or breach of statutory duty) from events, and/or a chain of events shall be limited to the amount of the Fees.

15. CLASSIFICATION

Classification information concerning relevant Services will be provided where required by local law. It is your responsibility to review the classification of Services for the purposes of determining its suitability for use, including by minors.

16. MISCELLANEOUS
    • Entire Agreement: This Agreement constitutes the entire agreement between you and us and supersedes and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between you and us, whether written or oral, relating to its subject matter.
    • Variation: We reserve the right to at any time make amendments to this Agreement, which shall take effect from the date of posting them to the Platform, and/or Website. If you continue to use the Services this shall constitute your agreeing to the changes to the terms of the Agreement. If you do not agree with the amended version of the Agreement you should stop using the Services immediately.
    • Notices: We may give you notice under this Agreement through posts on the Platform and/or the Website or by email or by any other means that we think is suitable and sufficient, and you consent to such notice.
    • Severability: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
    • Assignment: We may assign or transfer all or part of this Agreement or our rights or obligations to another party at our sole discretion, without requiring your consent. You are not permitted to assign or transfer the Agreement or your rights and obligations under this Agreement.
    • Force Majeure: We shall not be responsible for any delay or failure to perform when our failure results from an event beyond our reasonable control, including, but not limited to an act of God, the internet being down, flood, fire, pandemic, strikes, trade disputes or an act of terrorism or war.
    • Disputes: If you are involved in a dispute with another user of the Services you release us (including our directors, officers, employees, contractors, partners and agents) from any claims, damages or demands of any kind (direct or indirect) that arise or are in any way related to such a dispute.
    • Waiver: No failure or delay by us to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    • Interpretation: Words denoting the singular include the plural and vice versa and words importing the masculine includes the feminine and the neuter. Headings are included for ease of reference only and shall not affect the meaning of the provisions to which they relate.
    • Governing Law: This Agreement and performance under the same shall be governed by the laws of the State of Victoria and you and us submit to the jurisdiction of the courts of Victoria.