Terms and Conditions of Use Agreement
The following constitutes the MINDink Terms and Conditions of Use Agreement (“Agreement”) and is legally binding and applies to your use of the MINDink Services (as further defined).
Effective Date: This Agreement was last revised on February 20, 2015.
Please read the terms of this agreement carefully. This agreement sets forth the legally binding terms and conditions for your use of the MINDink Services and includes grants of rights to us, limitations on our liability and, for certain users, an agreement to arbitrate disputes. You should print a copy of these terms or save them on your device in the event that you need to refer to them in the future.
The MINDink Services are operated by MINDink Pty Ltd, a company with a registered business address at 250 Riley Street, Surry Hills 2010 NSW Australia. MINDink Pty Ltd.
Additional Terms: Shall mean separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions.
Content: Shall mean text, messages, files, images, photos, video, audio, works of authorship, applications, or any other materials that a User or Third Party Content Owner may transmit, submit, display or publish (“post”) on, through or in connection with the MINDink Services.
Device: Shall mean digital hardware used to access the MINDink website and MINDink Services, including, without limitation, mobile or other wireless connections.
Linked Services: Shall mean third party applications; widgets; websites; or mobile, desktop or other MINDink Services that are linked with a Users account at the Users election.
Member: Shall mean any person who registers to access the MINDink Services.
MINDink Services: Shall mean: the ability to purchase Third Party Content via the MINDink Website (subject to the terms of this Agreement); the instant messaging, private messaging, and public and private group chatting elements to the MINDink offering; and any other features, content, or applications offered or operated from time to time by MINDink in connection with MINDink‘s business.
MINDink Website. Shall mean the website accessible to Users and through which Users are able to access and use the MINDink Services (http://mindink.com/).
Third Party Content Owners: Shall mean non-Users, publishing companies and Intellectual Property right owners that MINDink has commercial arrangements.
Third Party Content: Shall mean digital Content owned by Third Party Content Owners requiring a fee payment to access.
User (“you”, “your”): Shall mean a Visitor or a Member.
Visitor: Shall mean any person simply browsing the MINDink Website and MINDink Services through a Device, or otherwise use the MINDink Services without being registered.
1. Eligibility Use of the MINDink Services, access to the MINDink Website and registration to be a Member for the MINDink Services (“Membership“) is void where prohibited and subject to compliance with Applicable Law (as defined below), this Agreement and any applicable Additional Terms. By using the MINDink Services, you represent and warrant that (a) other than as authorized in the Non-Standard Profile terms in Section 9 below, all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 13 years of age or older, and if you are not of the age of majority where you reside, you will only use the MINDink Services with parental or legal guardian consent (following their review of this Agreement); and (d) your use of the MINDink Services does not violate any applicable laws, rules and regulations (“Applicable Law“). You may not create an Account for anyone other than yourself without the other person’s permission. Your Account will be deleted and your Membership may be terminated without warning, if we believe that you have misrepresented your age or identity to us in a manner that violates this Agreement or is unlawful. Registered sex offenders and those convicted of violent crimes are not eligible for Membership.
2. Term and Termination This Agreement will continue to apply to you until terminated by either you or MINDink. MINDink may terminate the Agreement or suspend your access to the MINDink Services at any time, including in the event of your actual or suspected unauthorised use of the MINDink Services or non-compliance with the terms of this Agreement. If you or MINDink terminate this Agreement, or if MINDink suspends your access to the MINDink Services, other than that expressed in clause 6.10, you agree that MINDink shall have no liability or responsibility to you and MINDink will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.
3. Password When you sign up to become a Member, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Account, username, email address or password of another Member at any time or to disclose your password to any third party. You agree to notify MINDink immediately if you suspect any unauthorised use of your Account or access to your password. You are solely responsible for any and all use of your Account.
4. Use by Members The MINDink Services are for the personal use of Members and Users and may only be used for direct commercial purposes if they are specifically endorsed or authorised by MINDink. MINDink reserves the right to remove commercial Content in its sole discretion. Without limiting the generality of the commercial use restrictions, the unauthorised collection of usernames, user id numbers or similar designation, and/or email addresses of Members by electronic or other means, or employing third party promotional sites or software to promote Profiles for money, is prohibited. Commercial advertisements, endorsements, affiliate links, and other forms of unauthorised data collection or solicitation may be removed from Profiles without notice or explanation and may result in termination of Membership privileges.
To maintain the MINDink Services in a manner we deem appropriate for our venue and to the maximum extent permitted by applicable law, MINDink may, but will not have any obligation to, review, monitor, display, reject, refuse to post, store, maintain, accept or remove any Content (as further defined below) posted (including, without limitation, private MINDink messages, public comments, public group chat messages, private group chat messages or private instant messages (collectively, “Messages”)) by you, and MINDink may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of Content without notice or any liability to you or any third party in connection with our operation of Content venues in an appropriate manner. Without limitation, we may do so to address Content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or the Agreement or any applicable Additional Terms, including, without limitation, the Content restrictions set forth below in Section 8.
5. Proprietary Rights in Content on MINDink
5.1. MINDink does not claim any ownership rights of Content that you transmit, submit, display or publish (“post”) on, through or in connection with the MINDink Services. After posting your Content on, through or in connection with the MINDink Services, you continue to retain any such rights that you may have in your Content, subject to the limited license granted herein. By posting any Content on, through or in connection with the MINDink Services, you hereby grant to MINDink a limited license to use, modify, delete from, add to, combine with other Content, publicly perform, publicly display, reproduce, transmit, sell, distribute, and otherwise exploit such Content by all means and manners now or later known, including, without limitation, on, through or in connection with the MINDink Services to third party applications; widgets; websites; or mobile, desktop or other MINDink Services which are linked with your Account at your election (collectively, “Linked Services“), including, without limitation, distributing part or all of the MINDink Services and any Content included therein, in any media formats and through any media channels. Content submitted by Users and authorized by the User to be distributed on Linked Services need not be maintained on the MINDink Services by us for any period of time, and Users will not have the right, once submitted, to access, archive, maintain or otherwise use such Content on the MINDink Services or elsewhere. The license you grant is perpetual; provided, however, that after you remove your Content from the MINDink Services, we will make commercially reasonable efforts to remove such specific deleted Content from further distribution on the MINDink Services, as soon as practicable but, please be aware that any distribution of your Content that may have occurred by you or other Users via Linked Services, or otherwise (e.g., posted on third party User’s Profiles, sent by you to other Users, contributed to a mashup of Content from multiple Users, etc.) may continue to be displayed, distributed and used. Further, deleted Content may persist in archival copies on MINDink servers for a reasonable period of time. You understand and agree that once Content is distributed to a Linked Service, or incorporated into other aspects of the MINDink Services (e.g., as part of a derivative work), MINDink is under no obligation to delete or ask other Users or a Linked Service to delete that Content; therefore, it may continue to appear and be used indefinitely.
5.2. The licence you grant to MINDink is non-exclusive (meaning you are free to license your Content to anyone else in addition to MINDink), fully-paid and royalty-free (meaning that MINDink is not required to pay you or anyone else deriving rights from you for the use by MINDink of the Content that you post), sub licensable (so that MINDink is able to use its affiliates, subcontractors and other partners such as Internet Content delivery networks and wireless carriers to provide the MINDink Services and, subject to good faith efforts to honour your Profile Settings, to third party search engines), and worldwide (because the Internet and the MINDink Services are global in reach). You also hereby grant to MINDink, and agree to grant to MINDink, the unconditional, perpetual, irrevocable, sub-licensable, fully-paid and royalty free right to use, share and exploit your name, persona, and likeness, and your Profile information and information about your activities on the MINDink Services (including, without limitation, your activities in connection with our business partners), without any obligation or remuneration to you. However, from time to time we may offer you choices regarding how information about you is shared and we will make good faith efforts to honour your elections. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Content. To the extent not MINDink, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the rights granted hereunder. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 6. If you are a minor, you represent and warrant that your parent or legal guardian has consented to you granting the rights as set forth in this Section 6, or that are provided in any Additional Terms.
5.3. Each time you submit any Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor (including yourself) who is depicted in or contributed to any Content you submit, and that, as to that Content: (i) you are the sole author and/or owner of the Content posted by you on, through or in connection with the MINDink Services, or otherwise have the lawful right to grant the licence set forth in this Section 6 or that is provided in any Additional Terms, all without any MINDink obligation to obtain consent of any third party and without creating any obligation or liability of MINDink, (ii) the Content is accurate (other than as authorised in Section 8 or any Additional Terms); (iii) the posting of your Content on, through or in connection with the MINDink Services and/or Linked Services does not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any person or entity; and (iv) the Content will not violate this Agreement (including the prohibitions in Section 8) or any Additional Terms, or cause injury or harm to any person. You agree to pay all royalties, fees, and any other monies owing any person or entity by reason of the use of any Content posted by you on or through the MINDink Services and/or Linked Services.
5.5. In your communications with MINDink, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even MINDink improvements to products or MINDink Services, such as ideas, concepts, inventions, designs for equipment, books, scripts, screenplays, motion pictures, television shows, theatrical productions, or webisodes (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us (via the MINDink Services or otherwise) are deemed User Content and licensed to us as set forth in this Section 6. In addition, MINDink retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. MINDink’s receipt of your Unsolicited Ideas and Materials is not an admission by MINDink of their novelty, priority, or originality, and it does not impair MINDink‘s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
5.6. The MINDink Services contain Content owned by MINDink (“MINDink Content“). MINDink Content is protected by copyright, trademark, patent, trade secret and other laws, and MINDink owns and retains all rights in the MINDink Content and the MINDink Services. Subject to clause 6.8 below, MINDink hereby grants you a limited, revocable, non-sublicensable licence to reproduce and display the MINDink Content (excluding any software code) solely for your personal use in connection with this Agreement, and in connection with standard search engine activity or use of a standard Internet browser (e.g., for making cache copies).
5.7. The MINDink Services contain Content of Users (“User Content“). Except as otherwise provided within this Agreement, or in any Additional Terms, you may not copy, download, communicate, make available, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any User Content appearing on or through the MINDink Services.
5.8. Subject to the terms of this Agreement any applicable Additional Terms (in particular but without limitation to any eligibility and/or payment requirements), you are hereby granted a limited, revocable, non-sublicensable, non-exclusive licence to access and use the MINDink Services (i) for the purposes of research, teaching, and private study, (ii) in order to access and purchase Third Party Content (iii) and to view or listen to, as applicable, the Third Party Content solely for your personal, non-commercial use in connection with viewing and using the MINDink Services and in connection with standard search engine activity or use of a standard Internet browser (e.g., for making cache copies). Except as otherwise expressly provided in writing by MINDink, you are granted no right, title or interest in any Third Party Content. For the avoidance of doubt, Third Party Content is protected by copyright, trademark, patent, trade secret and other laws, and each Third Party Content Owner shall at all times retain all rights in its Third Party Content.
5.9. MINDink reserves the right to limit the storage capacity of Content that you post on, through or in connection with the MINDink Services.
5.10. When you post Content on our website, you consent to us placing a copy of the Content into the custody of an independent third party escrow agent. The agent will be authorised to maintain the availability of Third Party Content to you and other users even in the unlikely event that we cease to operate for any reason. The licence for this continued use will in such circumstances transfer to the escrow agent and thereafter to any entity which assumes responsibility for running the MINDink business.
5.11. This Agreement and any Additional Terms include only limited grants of rights to MINDink Content, Third Party Content and to use and access the MINDink Services. No right or licence may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by MINDink and its licensors and other third parties. Any goodwill that is created in connection with your use of MINDink Content or the MINDink Services inures to MINDink. Any unauthorised use of any MINDink Content, Third Party Content or the MINDink Services for any purpose is prohibited.
6. Content Posted Please choose carefully the information that you post on, through or in connection with the MINDink Services and that you provide to other Users. Your Profile may not include any form of Prohibited Content, as outlined in Section 8 below. Despite this prohibition, information, materials, products or MINDink Services provided by other MINDink Members (for instance, in their Profiles) or Linked Services may, in whole or in part, be unauthorised, impermissible or otherwise violate this Agreement, and MINDink assumes no responsibility or liability for this material.
6.1. MINDink may reject, refuse to post or delete any Content that, in the sole judgment of MINDink, violates this Agreement, is inappropriate for the MINDink Services or which may be offensive, illegal or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. However, we are not obligated to take any action not required by law. MINDink, may, but assumes no responsibility or obligation for reviewing or monitoring the MINDink Services for inappropriate Content or conduct. If at any time MINDink chooses, in its sole discretion, to review or monitor the MINDink Services, MINDink nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
6.2. You are solely responsible for the Content that you post on, through or in connection with any of the MINDink Services and/or Linked Services, and any material or information that you transmit to other Members and for your interactions with other Users. Any breach by you of this Section 7 will be subject to the indemnification obligations set forth in Section 18 below. We reserve the right to request at any time proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the Content in question being removed from the MINDink Services.
6.3. The MINDink Services are a community and inherently a social media experience. Subject to our good faith efforts to honour your election of certain options we may offer from time to time that may offer you certain choices regarding what is shared and with whom, your activities, Content and Content consumption (including videos and audio) may be viewable by, or shared with, others on and off of the MINDink Services. You consent to this, and irrevocably grant us the sub-licensable right to use and exploit your name, persona, likeness, pseudonym, Profile picture, information and Content, and to share it with others, without any obligation or remuneration to you.
7. Content/Activity Prohibited
7.1. We limit use of the MINDink Services to Content and activities that are appropriate, in our discretion, to our venue. The following are examples, without limitation, of the kind of Content or activities that are illegal, or prohibited to post on, through or in connection with the MINDink Services (“Prohibited Content“). MINDink reserves the right to investigate and take appropriate action (which may include taking legal action) against anyone who, in MINDink’s sole discretion, violates this provision, including, without limitation, removing the offending Content from the MINDink Services, terminating the Membership of such violators and/or reporting such Content or activities to law enforcement authorities.
7.2. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of MINDink:
– is patently offensive or promotes or otherwise incites racism, bigotry, hatred, bullying or physical harm of any kind against any group or individual;
– harasses or advocates harassment of another person;
– exploits people in a sexual or violent manner;
– contains nudity, excessive violence, or offensive subject matter or links to an adult website;
– solicits or is designed to solicit personal information from anyone under age 13;
– solicits or is designed to solicit an inappropriate or unlawful relationship with another User;
– publicly posts information that poses or creates a privacy or security risk to any person (including, for example, by publicly posting any person’s contact information on the MINDink Services without authorisation);
– other than as authorised in the Non-Standard Profile terms in Section 9 below, constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
– constitutes or promotes an illegal or unauthorised copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated audio, video, text or links to pirated audio, video or text files;
– involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”;
– contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
– furthers, promotes or depicts any illegal or criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to, making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
– depicts firearms or other weapons that is not related to sportsman activities;
– solicits or is designed to solicit passwords or personal identifying information for commercial or unlawful purposes from other Users;
– involves commercial activities and/or sales without prior written consent from MINDink such as contests, sweepstakes, barter, advertising, or pyramid schemes;
– includes a photograph or video of another person that you have posted without that person’s consent;
– uses sexually suggestive imagery or any unfair, misleading or deceptive Content intended to draw traffic to the profile; or
– violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
7.3. Prohibited Content, including unauthorised commercial advertisements, endorsements, affiliate links, and other forms of unauthorised data collection or solicitation may be removed from Profiles without notice or explanation.
7.4. The following are examples of the kind of activity that is illegal or prohibited on the MINDink Website and through your use of the MINDink Services (“Prohibited Activity“). Prohibited Activity on, through, or in connection with MINDink Content, Third Party Content and the MINDink Services includes, but is not limited to:
– republishing, redistributing or re-transmitting any Third Party Content or any part of it (including, without limitation, by way of email, news groups, file or discussion areas, intranet or internet site, on any social media site (including Facebook and Twitter) or by any other means);
– storing any Third Party Content on a server or other storage device connected to a network or create a database;
– removing or changing any Third Party Content or attempting to circumvent security or interfere with the proper working of any Third Party Content or any servers on which it is hosted;
– using any MINDink Content in a way that might damage our name or reputation or that of any of our partners and affiliates;
– criminal or tortious activity, including, but not limited to, child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, defamation, stalking, spamming, sending of viruses or other harmful files, copyright infringement, patent infringement, trademark infringement, or theft of trade secrets;
– advertising to, or solicitation of, any Member to buy or sell any products or services through the unauthorised or impermissible use of the MINDink Services. You may not transmit any chain letters, junk email or unsolicited commercial or inappropriate Messages to other Members.
– unless permitted by law, circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the MINDink Services;
– activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorised use of or access to a computer or a computer network;
– except as may be permitted by Additional Terms or our intended use of functionality made available by us to you on the MINDink Services, modifying, copying, distributing, downloading, scraping or transmitting in any form or by any means, in whole or in part, any Content from the MINDink Services (other than your Content which you legally post on, through or in connection with the MINDink Services) or as may be the result of standard search engine activity or use of a standard Internet browser;
– providing or using “tracking” or monitoring functionality in connection with the MINDink Services, including, without limitation, to identify other Users’ views, actions or other activities on the MINDink Services;
– covering or obscuring the advertisements and/or safety features (e.g., reporting functionality) on your Profile, or any portion of any MINDink Services or Content on the MINDink Services via HTML/CSS or any other means;
– any automated use of the MINDink Services, including but not limited to, using scripts or other code to connect to Profiles, send comments, or perform any other activity on the MINDink Services;
– interfering with, disrupting, or creating an undue burden on the MINDink Services or the networks or services connected to the MINDink Services;
– impersonating or attempting to impersonate MINDink or a MINDink employee, administrator or moderator, another Member, or person or entity (including, without limitation, the use of email addresses associated with or of any of the foregoing), excepting the permitted use of Alias Profiles as set forth in Section 9;
– using the Account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your Account;
– selling or otherwise transferring your Profile, username, vanity URL (which all belong to MINDink and is licensed to you pursuant to the licence set forth in Section 6);
– using or distributing any information obtained from the MINDink Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
– the unauthorised collection of usernames, user id numbers or similar designation, email addresses or other personal information of Members by electronic or other means, or employing third party promotional sites or software to promote Profiles for money;
– displaying an unauthorised commercial advertisement on your Profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the MINDink Services on behalf of that person, such as placing commercial content on your Profile; links to e-commerce sites not authorised by MINDink; posting comments with a commercial purpose; selecting a Profile with a commercial purpose as one of your top connections; or sending Messages with a commercial purpose (excluding use of the MINDink Services by artists to create Profiles and post Content that promote the artist’s professional endeavours consistent with the terms and conditions of this Agreement);
– using invalid or forged headers to disguise the origin of any Content transmitted to or through MINDink’s computer systems, or otherwise misrepresenting yourself or the source of any Message or Content;
– using any automated system, including, but not limited to, robot, both rover, spider, scraper, crawler, spyware, scripts, engine, device, software, extraction tool in order to monitor, harvest, copy or distribute (except as may be a result of standard search engine activity or use of a standard Internet browser) Content, Messages, email addresses or other personal information of Members, or other data from the MINDink Services for the purposes of sending unsolicited or unauthorised material, selling to data aggregators or similar entities, or revealing personal information publicly;
– engaging in, either directly or indirectly, or encouraging others to engage in, click-throughs generated through any manner that could be reasonably interpreted as coercive, incentivised, misleading, malicious, or otherwise fraudulent;
– the unauthorised posting of any private information of any person;
– offering to sell, barter or trade, or selling, bartering or trading for your vote in any aspect of the MINDink Services that provides a voting functionality;
– modifying, adapting, translating, altering, reverse engineering, copying, decompiling, reverse assembling, disassembling, unencrypting, unhashing, or creating derivative works (as defined by the Australian Copyright Act) or improvements (as defined by Australia patent law) from any portion of the MINDink Services or the data or technology underlying their operation; or
– using the MINDink Services in a manner inconsistent with this Agreement or Applicable Law.
– or otherwise do anything that it is not expressly permitted by these terms.
8.1. Real Name Profiles. You may create a Profile in which your activities on the MINDink Services are associated with your real name (each, a “Real Name Profile“), and you agree and acknowledge that any risk associated with such Real Name Profiles are borne solely by you.
8.2. Alias Profiles. An Alias Profile allows you to create an alternate public-facing profile as an alternative to a Real Name Profile, which publicly displays your real name in association with your Profile and activities on the MINDink Services. For example, you might decide that in an Alias Profile, your username or full name for that Profile is a nickname or other made up name.
8.3. Suspension or Termination. MINDink may suspend or terminate Profiles, and/or the Membership of Accounts associated with them, in the event they do not comply with this Agreement, or for any other or no reason. Individuals and Members may set up profiles, subject to certain rules. From time to time we may offer certain functionality to allow you to express privacy, communication and other preferences, which we will make a good faith effort to honour.
9. Protecting Copyrights and Other Intellectual Property MINDink respects the intellectual property of others, and requires that our Users and Members do the same. You may not upload, embed, post, email, transmit or otherwise make available any Content that infringes any copyright, patent, trademark, trade secret, privacy, publicity or other proprietary rights of any person or entity. It is MINDink’s policy to terminate, in appropriate circumstances, the Membership of repeat or substantial infringers. If you believe your work has been copied and posted on or through the MINDink Services in a way that constitutes copyright and/or trademark infringement.
10.1. Linked Services.
10.1.1. Linked Services created by third party developers may be available on, through or in connection with the MINDink Services. Linked Services include applications, websites, desktop, wireless, mobile and other services available from third parties which can be installed onto your Profile, or elsewhere on the MINDink Services, shared with other Users on the MINDink Services, otherwise accessed via the MINDink Services, or which may link to your Profile from outside of the MINDink Services. Linked Services may use your Profile information, friends and/or other Profile Content on the Linked Service and share activity events between MINDink and the Linked Service (depending on the features the Linked Service chooses to make available). We may offer you certain ability to control what is initially shared with Linked Services through your Profile Settings, or permission options otherwise made available to you (e.g., when downloading, accessing or activating Linked Services), and we will use good faith efforts to honour those choices.
10.2. Hyperlinks to MINDink. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable licence to create hyperlinks to the MINDink Services, so long as: (a) the links only incorporate text, and do not use any trademarked logos or graphics that are owned by or licensed to MINDink, without MINDink’s prior authorisation, (b) the links and the content on your website do not suggest any affiliation with MINDink or cause any other confusion, (c) you do not create hyperlinks to Third Party Content in any way which would breach this Agreement and (d) the links and the content on your website do not portray MINDink or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to MINDink. MINDink reserves the right to suspend or prohibit linking to the MINDink Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
11. Member Disputes You are solely responsible for your interactions with other Users, third party developers and any other parties with whom you interact through the MINDink Services and/or Linked Services so use caution when dealing with others. MINDink reserves the right, but has no obligation, to become involved in any way with these disputes.
12.1. MINDink performs technical functions it deems necessary or appropriate to offer the MINDink Services, including, but not limited to, the technical processing and transmission of Messages to perform the messaging service, and transcoding and/or reformatting Content to allow its use throughout the MINDink Services. In addition, you agree and acknowledge that MINDink may send Messages, whose content may include, but not be limited to, notifications, special offers, promotions, commercial advertisements, and marketing materials, in connection with the MINDink Services, and/or the services of MINDink’s affiliates and/or third-party business partners. We offer you certain choices as to what type of commercial communications you receive from the MINDink Services, which you can exercise by visiting your Profile Settings for notifications, or by following the unsubscribe instructions contained at the bottom of commercial emails sent by MINDink, and we will make good faith efforts to honour those choices. However, regardless of your elections we reserve the right to contact you to address transactional and operational issues related to your Account, Membership or activities in connection with MINDink Services
12.2. When you communicate with us electronically, such as via e-mail, you consent to receive communications from MINDink by the same method. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
12.3. MINDink may interact with law enforcement regarding your use of the MINDink Services. You acknowledge and agree that MINDink may make your information available to law enforcement.
13.1. To the maximum extent permitted by applicable law, MINDink is not responsible for and makes no representations or warranties or endorsements of any kind whatsoever, express or implied, as to: (a) the MINDink Services; (b) the MINDink content on or provided through the MINDink Services; (c) the content or user content (including the accuracy and reliability thereof); (d) the third party content; (e) the Linked Services; (f) the functions made accessible on or through the MINDink Services; (g) any products, services or instructions offered or referenced in the MINDink Services; and/or (h) security associated with the transmission of information transmitted to or from MINDink or others via the MINDink Services.
13.2. In addition and to the maximum extent permitted by applicable law, MINDink is not responsible for any damage, injury or loss caused by users of the MINDink Services or by any of the equipment or programming associated with or utilised in the MINDink Services or Linked Services.
13.3. Profiles and Linked Services on, through or in connection with the MINDink Services may contain links to other websites or services. MINDink is not responsible for the content, accuracy or opinions expressed on such websites and services, and such websites and services are not necessarily investigated, monitored or checked for accuracy or completeness by MINDink. Inclusion of any linked website or service on the MINDink Services does not imply approval or endorsement of the linked website or service by MINDink. When you access these third party sites and services, you do so at your own risk. MINDink takes no responsibility for third party advertisements or Linked Services that are posted on, through or in connection with the MINDink Services or Linked Services, nor does it take any responsibility for the goods or services provided by these third parties. MINDink is not responsible for the conduct, whether online or offline, of any user of the MINDink Services or Linked Services. MINDink assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorised access to, or alteration of, any user or member communication. MINDink is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the internet or on any of the MINDink services or linked services or combination thereof, including, without limitation, any injury or damage to users or to any person’s computer related to or resulting from participation or downloading materials in connection with the MINDink services or linked services.
13.4. Under no circumstances shall MINDink be responsible for any loss or damage, including, without limitation, personal injury or death, resulting from use of the MINDink services or linked services, attendance at a MINDink event, from any user content posted on or through the MINDink services or linked services, or from the conduct of any users of the MINDink services, whether online or offline. The MINDink services and your ability to access the linked services are provided “as-is” and “as available” and “with all faults” basis and MINDink expressly disclaims all warranties, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose, non-infringement, title, custom, trade, quiet enjoyment, system integration and freedom from computer virus. MINDink cannot guarantee and does not promise any specific results from use of the MINDink Services or Linked Services. Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply you to the extent required by applicable law.
14. Limitation on Liability
14.1. In no event shall MINDink be liable to you or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including, without limitation, lost profit damages arising from: (a) your use or inability to use the MINDink Services (including the content, MINDink Content and Third Party Content) or Linked Services, or the performance of the MINDink Services or Linked Services, (b) any action taken in connection with an investigation by MINDink or law enforcement authorities regarding your access to or use of the MINDink Services, (c) any action taken in connection with copyright or other intellectual property owners or other rights owners, (d) any errors or omissions in the MINDink Services’ technical operation, or (e) any damage to a user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction, even if MINDink has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, MINDink’s liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to MINDink for the MINDink Services during the term of membership. The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if MINDink was advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the MINDink Services). Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you to the extent required by applicable law.
14.2. Residents of the European Union are entitled to the following exclusion to the disclaimers or limitation of liability: nothing in this Agreement shall operate to exclude or limit our liability for death or personal injury caused by its negligence; fraud or fraudulent concealment; or any other liability which cannot be excluded or limited under applicable law.
15. Arbitration and No Class Relief Certain portions of this Section 16 are deemed to be a “written agreement to arbitrate” pursuant to the Commercial Arbitration Act, 2010 (NSW) and apply to all Users of the MINDink Services where the mandatory laws in their country of residence permit such arbitration. You and MINDink agree that we intend that this Section 16 satisfies the “writing” requirement of the Commercial Arbitration Act. Where arbitration is not permitted by the mandatory laws in your country of residence, the provisions of Section 16 shall apply to all relevant disputes between you and MINDink. This Section 16 can only be changed or terminated upon mutual agreement.
15.1. Disputes. Any controversy, allegation, or claim between you and MINDink arising out of or relating to the MINDink Services, the MINDink Content, the Content, this Agreement, or any Additional Terms, whether heretofore or hereafter arising are “Disputes“.
15.1.1. First – Try to Resolve. If you or MINDink becomes aware of a Dispute, then you and we agree to send a written notice to the other providing a reasonable description of the Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 16.1.1. Your notice to us must be sent to: MINDink Pty Ltd, Level 4, 2 Barrack Street, Sydney NSW 2000, Attn: Business & Legal Affairs. For a period of sixty (60) days from the date of receipt of notice from the other party, MINDink and you will engage in a dialogue in order to attempt to resolve the Dispute, though nothing will require either you or MINDink to resolve the Dispute on terms with respect to which you and MINDink, in each of our sole discretion, are not comfortable.
15.1.2. Arbitration of Most Disputes. If we cannot resolve a Dispute as set forth in Section 16.1.1 within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 16.1, unless it is an Excluded Dispute, which shall be handled in accordance with Section 16.2.
15.1.3. Arbitrator. Upon expiration of the applicable sixty (60) day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the procedures of the Commercial Arbitration Act, 2010 (NSW).
15.1.4. Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honour the terms of this Agreement (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, with arbitration: (a) there is no judge or jury, (b) the arbitration proceedings and arbitration outcome are subject to certain confidentiality rules, and (c) judicial review of the arbitration outcome is limited. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but, if applicable arbitration rules or laws require MINDink to pay a greater portion or all of such fees and costs in order for this Section 16 to be enforceable, then MINDink will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based.
15.1.5. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 16.1.3 holds that this restriction is unconscionable or unenforceable, then our agreement in Section 16.1.2 to arbitrate will not apply, and the Dispute must be brought exclusively in court pursuant to Section 16.3.
15.1.6. Limited Time to File Claims. To the fullest extent permitted by applicable law, if you or we want to assert a dispute (but not a excluded dispute) against the other, then you or we must commence it (by delivery of written notice as set forth in section 16.1.1 within one (1) year after discovery of the dispute arises — or it will be forever barred.
15.2. Excluded Disputes. The following disputes constitute “Excluded Disputes” hereunder: (i) any Dispute regarding any of MINDink’s actual or alleged intellectual property rights, (ii) Disputes, to the extent that the laws of the State of New South Wales authorise may be brought in small claims court, and (iii) legal action taken by MINDink to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the MINDink Services, any Content, your User Content and/or MINDink’s intellectual property rights (including such MINDink may claim that may be in dispute), MINDink’s operations, and/or MINDink’s products or services (collectively, “Injunctive Relief”).
15.2.1. First – Try to Resolve. If (x) any Excluded Dispute arises, and (y) excluding Excluded Disputes involving Injunctive Relief, you and we agree to send a written notice to the other providing a reasonable description of the Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 16.2.1. Your notice to us must be sent to: MINDink Pty Ltd, Level 4, 2 Barrack Street, Sydney NSW 2000, Attn: Business & Legal Affairs. For a period of sixty (60) days from the date of receipt of notice from the other party, MINDink and you will engage in a dialogue in order to attempt to resolve the Excluded Dispute, though nothing will require either you or MINDink to resolve the Excluded Dispute on terms with respect to which you and MINDink, in each of our sole discretion, are not comfortable.
15.2.2. If we cannot resolve authorized Excluded Dispute as set forth in Section 16.2.1 within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration pursuant to Section 16.1 only if you and MINDink consent, in a writing signed by you and an officer or business and legal affairs representative of MINDink, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” and shall be governed by Section 16.1. In the absence of such agreement, Section 16.1 shall not apply to Excluded Disputes, and Sections 16.3 and 16.4 shall apply.
15.2.3. Injunctive Relief. With respect to Excluded Disputes involving Injunctive Relief, Section 16.3 and 16.4 apply, and MINDink may institute such Excluded Disputes as authorized therein immediately.
15.3. Jurisdiction. Except to the extent that arbitration is required in Section 16.1 or authorised in Section 16.2, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in New South Wales, Australia. Accordingly, you and MINDink consent to the exclusive personal jurisdiction and venue of such courts for such matters.
15.4. Governing Law. This Agreement and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the New South Wales, without regard to its conflicts of law provisions.
16. Other Dispute Resolution where Arbitration is Not Applicable This Section 17 applies to all Users of the MINDink Services, if, and only to the extent that, the mandatory laws in your country of residence do not permit arbitration of Disputes in accordance with Section 17.
16.1. Section 17 Disputes. If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the MINDink Services, the MINDink Content, the Content, this Agreement, or any Additional Terms, whether heretofore or hereafter arising or to any of MINDink’s actual or alleged intellectual property rights (collectively, a “Section 17 Dispute“), then you and we agree to send a written notice to the other providing a reasonable description of the Section 18 Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 17.1. Your notice to us must be sent to: MINDink Pty Ltd, 250 4, 2 Riley Street, Surry Hills NSW 2010, Attn: Business & Legal Affairs. For a period of sixty (60) days from the date of receipt of notice from the other party, MINDink and you will engage in a dialogue in order to attempt to resolve the Section 17 Dispute, though nothing will require either you or MINDink to resolve the Section 17 Dispute on terms with respect to which you and MINDink, in each of our sole discretion, are not comfortable.
16.2. Jurisdiction. The parties agree that the state or federal courts in New South Wales shall have non-exclusive jurisdiction of any Section 17 Dispute.
16.3. Governing Law. To the maximum extent permitted by the mandatory laws in your country of residence, this Agreement, any Additional Terms and any Section 17 Dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of New South Wales, without regard to its conflicts of law provisions.
16.4. Limited Time to File Claims. To the fullest extent permitted by applicable law, if you or we want to assert a section 18 dispute against the other, then you or we must commence it (by delivery of written notice as set forth in section 17.1) within one (1) year after discovery of the section 17 dispute arises — or it will be forever barred.
16.5. Injunctive Relief. The foregoing provisions of this Section 17 will not apply to any legal action taken by MINDink to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the MINDink Services, any Content, your User Content and/or MINDink’s intellectual property rights (including such MINDink may claim that may be in dispute), MINDink’s operations, and/or MINDink’s products or MINDink Services.
17. Indemnity and Waiver of Injunctive Relief
17.1. Indemnification. To the maximum extent permitted by applicable law, you agree to indemnify, defend (at MINDink’s election) and hold MINDink, its subsidiaries, and affiliates, subcontractors and other partners, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable attorneys’ fees and costs, alleged by any third party due to or arising out of or in connection with: (a) your use of the MINDink Services or Linked Services, and your activities in connection with the MINDink Services or Linked Services; (b) your violation or anticipatory violation of any Applicable Law in connection with your use of the MINDink Services or Linked Services, or your activities in connection with the MINDink Services or Linked Services; (c) a breach or anticipatory breach of this Agreement or any Additional Terms; (d) any breach of your agreements, representations and warranties set forth in this Agreement; (e) any Content that you post on, through or in connection with the MINDink Services or Linked Services; (f) information or material transmitted through your Device used to access the MINDink Services, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (g) any misrepresentation made by you; and (h) MINDink’s permitted use of the information that you submit to us (including your Content) (all of the foregoing, “Claims and Losses“). You will cooperate fully as required by MINDink in the defence of any Claim and Losses. Notwithstanding the foregoing, MINDink retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. MINDink reserves the right to assume the exclusive defence and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of MINDink.
17.2. To the maximum extent permitted by applicable law, if you claim that you have incurred any loss, damages, or injuries in connection with your use of the MINDink Services, then the losses, damages, and injuries will not be irreparable or sufficient to entitle you to an injunction or to other equitable relief of any kind. This means (without limitation) that, in connection with your claim, you agree that you will not seek, and that you will not be permitted to obtain, any court or other action that may interfere with or prevent the development or exploitation of any website, content, user content, product, service, or other intellectual property owned, licensed, used or controlled by MINDink (including your licensed content) or a licensor of MINDink. However, you acknowledge that any breach or anticipatory breach by you of this agreement may result in harm to MINDink not capable of a remedy of money damages alone and accordingly in addition to any action at law for damages, MINDink will be entitled to seek injunctive and other equitable relief.
18. Wireless The MINDink Services may offer certain features and services that are available to you via your wireless Device used to access the MINDink Services. These features and services may include the ability to access the MINDink Services’ features and upload content to the MINDink Services, receive Messages from the MINDink Services, and download applications to your wireless Device (collectively, “Wireless Features“). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or Device. You should check with your carrier to find out what plans are available and how much they cost or any other questions regarding these carrier-related issues. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device. You may uninstall our applications to terminate the MINDink Services related to them.
19. Operation of MINDink Services; Availability of Products and Services; International Issues
19.1. MINDink controls and operates the MINDink Services from its Australian based, and MINDink makes no representation that the MINDink Services is appropriate or available for use beyond Australia. If you use the MINDink Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The MINDink Services may describe products and services that are available only in Australia (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the MINDink Services and/or the provision of any content, program, product, service, or other features described or available on the MINDink Services to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.
19.2. By accessing or using the MINDink Services, you represent and warrant that your activities are lawful in every jurisdiction where you access or use the MINDink Services.
19.3. You and we disclaim any application to this Agreement of the Convention on Contracts for the International Sale of Goods.
20. Software End User License Agreement
20.1. MINDink may offer the MINDink Services via software applications designed to run on specific operating systems, including, without limitation, mobile operating systems (including any updates and upgrades thereto, the “Software”). The Software is MINDink Content. Subject to the terms of this Agreement, MINDink grants you a limited, non-exclusive, non-sublicenseable license to use the Software solely to access the MINDink Services. You are not authorised to use the Software in any other manner.
20.2. Without limiting the generality of the foregoing, you must not and must not allow any third party to:
20.2.1. Modify, adapt, translate, alter, reverse engineer, copy, decompile, reverse assemble, disassemble, or create derivative works (as defined by the Australian Copyright Act) or improvements (as defined by Australian patent law) from the Software or the MINDink Services or any portion thereof, or otherwise attempt to discover any source code or in any way ascertain, decipher, or obtain the communications protocol for accessing the MINDink Services through the Software;
20.2.2. Remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols or labels in the Software;
20.2.3. Obtain or attempt to obtain unauthorised access to the MINDink Services through the Software;
20.2.4. incorporate, integrate or otherwise include the Software or any portion of it (including the communications protocols) into any other service, software, program or product that communicates, accesses, or otherwise connects with the Service or any other Internet or online service other than as provided by MINDink;
20.2.5. Use the Software in any unlawful manner, for any unlawful purpose;
20.2.6. Use the Software to operate any mission critical application where human life or property might be at stake. The Software and the MINDink Services are not designed for such purposes and their failure in such cases could lead to death, personal injury, or property damage for which MINDink is not responsible;
20.2.7. Sell, lease, loan, distribute, transfer, or sublicense the Software, or access thereto or derive income from the use or provision of the Software, whether for direct commercial or monetary gain or otherwise;
20.2.8. Develop a skin or application for use in connection with the Software that infringes the intellectual property or other rights of MINDink or any third party;
20.3. You may install and personally use the Software only in object code form on a Device controlled by you for your own non-commercial use or benefit. MINDink may at any time and in its sole discretion revoke your license to use the Software or suspend or terminate your access to the Software without notice or explanation. If your license to use the Software terminates, you must (a) remove the Software from all hard drives, networks, Devices and other storage media, and (b) destroy all copies of the Software in your possession or under your control. All rights in any third-party data, software, or intellectual property are reserved and remain with the respective third party owners or licensors. These third parties may enforce their rights against you directly
21.1. This Agreement is accepted upon your use of the MINDink Website or any of the MINDink Services, and is further affirmed by you becoming a Member and any continued access or use of the MINDink Website or any of the MINDink Services. Your agreement with MINDink will always include this Agreement at a minimum, except to the extent modified by an Other Agreement to which we have mutually agreed. Your access and use of certain MINDink Services will require you to accept Additional Terms applicable to such certain MINDink Services, in addition to this Agreement, and may require you to download Software or provide Content. The failure of MINDink to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. MINDink is a registered trademark of MINDink Pty Ltd. MINDink may assign its rights and obligations under this Agreement and any Additional Terms, in whole or in part, to any party at any time without any notice. This Agreement and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of MINDink. This Agreement operates to the fullest extent permissible by law. This Agreement represents an agreement between you as a User (or if applicable, Member) of the MINDink Services and us as the service provider, and no other person can enforce any of its provisions against MINDink. This Agreement (and the documents referred to herein, including, without limitation, Additional Terms) constitute the entire agreement between you and us in relation to the use of the MINDink Services, and replace and extinguish all prior agreements, arrangements or undertakings of any nature made by the parties, whether oral or written, in relation to such subject matter.
21.2. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. If the remainder of the provision is not affected, we reserve the right to make lawful and reasonable variations to this Agreement which may be necessary in order to achieve, to the greatest extent possible, the same effect as would have been achieved by the provision (or part) in question that is deemed to be unlawful, void or unenforceable.