DISPLAYSWEET END-USER LICENCE AGREEMENTOverviewThis End User Licence Agreement (
EULA) provides the terms upon which you can access and use the website located at
www.displaysweet.com and the mobile application available for download (together, the
Platform).When we say
DisplaySweet,
we,
us, or Our, we mean Display Sweet Pty Ltd (ACN 613 256 054) including our related entities as you may be advised from time to time.
We take our privacy obligations seriously and will handle any Personal Information you transmit through the Platform in accordance with the applicable Privacy Laws and our
Privacy Policy.
You may receive access to our Platform directly from us, or indirectly through our Referral Partners. This Agreement applies to our relationship with you regardless of how you come to use our Platform.
Scope of Our Platform
2.1 Overview
Our Platform is a content-rich, web-based visualisation software and content management software.
Through the Platform, Users can present, view and manage property throughout a property sales or leasing cycle by uploading or editing project-related data content and sharing such data or content with other Users.
2.2 Our role
We act as the developer and provider of the Platform and our role is limited to:facilitating your access to and use of the Platform;
taking feedback about the Platform;
improving and modifying the Platform; and
in the case of a Production Licence, where applicable, inputting Your Data into the Platform in accordance with the specifications provided by you in the Principal Contract.
By accessing and using the Platform, you agree and acknowledge that:
we are not responsible for, and have no control over the use of the Platform by other Users;
we are not responsible for any relationship or agreement, contractual or otherwise, between Users, whether that relationship came into effect before, after or in connection with the use of the Platform; and
we reserve the right, but are not obliged, to monitor, verify, modify or delete, any material or information uploaded, created, generated or transmitted by Users through the Platform (collectively, User Content ) and we do not control the accuracy of User Content.
Registration and Access to Platform
3.1 Account RegistrationTo obtain access to our Platform, you:
• will be provided with a unique webpage link and password;
• must register for an account with us (
Account ); and
• upon clicking ‘I Accept” or “ I Agree” when prompted on the Platform you acknowledge and agree that you have reviewed and accepted these Terms and our
Privacy Policy which forms a contractual relationship between you and us.
To use our Platform, you must provide us with current, complete and accurate information on the sign-up page of the Platform, which may include, your full name, email address, phone number and business details including ABN or ACN if relevant (
Registration Information).
When registering an Account, you must nominate a username and password. You are responsible for maintaining the confidentiality and integrity of the Account, the password and for all use and activity carried out on your Account. If you believe that there has been unauthorised access to your Account, please contact us.
The information you provide us through the Platform, including but not limited to your Registration Information, must be accurate, complete and up to date. You must promptly update all information to ensure it remains up to date. We are not obliged to confirm the identity of Users but may, at our discretion, take reasonable steps to ensure details are accurate.
You acknowledge and agree that if the information that you provide to us is inaccurate or becomes out of date, you may not be able to use all or any of the features of the Platform.
We reserve the right to refuse to register any User for any reason at our sole discretion or to deny anyone access to an Account or the Platform at any time and for any reason, without notice.
3.2 General
It is important that you carefully read this Agreement, as by using the Platform by any means, you:
• agree to this Agreement and you enter into a legally binding agreement with us from the Effective Date;
• acknowledge that you have read and understood this Agreement;
• in the case of a Production Licence Primary Account holder, warrant that you have the authority to enter into this Agreement on your own behalf and on behalf of the entity that has entered into the Principal Contract; and
• in the case of an Evaluation Licence or Secondary Account holder, warrant that you have the authority to enter into a legal agreement with us on your own behalf.
Provision of the PlatformYou may obtain access to the Platform:
• directly from us, such as via our website or through our Representatives; or
• indirectly through:
– our Referral Partners; or
– another User,
in any event, the relationship between you and us will be governed by this Agreement, and you accept this Agreement by downloading and/or using the Platform.
Right to use the Platform5.1 Evaluation Licence
From the Effective Date until the licence is terminated in accordance with this Agreement and subject to your compliance with this Agreement, DisplaySweet grants you a revocable, non-exclusive, non-transferable, limited use licence to access the Platform.
5.2 Production Licence
Subject to DisplaySweet’s receipt of the applicable Fees in accordance with the Principal Contract and your compliance with this Agreement, DisplaySweet grants you a revocable, non-exclusive, royalty-free, non-transferable, non-sublicensable licence to use the Platform:
• for up to the maximum number of Users, including Secondary Accounts, or other licence metric set out in the Principal Contract in accordance with and subject to any limitation of use set out in the Principal Contract; and
• from the Effective Date until the licence is terminated in accordance with this Agreement.
Third Party ResourcesDisplaySweet may, from time to time, notify you of recommended or minimum hardware, software (including open source software) and network connection standards applicable to the Platform (
Third Party Resources).
The User is solely responsible for obtaining, licensing, installing, operating and maintaining all Third-Party Resources required to use the Platform.
• For the avoidance of doubt, Display Sweet will not be responsible for:
• any alleged intellectual property infringement that is due to the combination of the Platform with any Third Party Resources;
• any defect or delay in the operation of the Platform that is caused by a fault, malfunction or unavailability of Third-Party Resources that is not caused by any act or omission of DisplaySweet; or
• any defect or delay in the operation of the Platform that is caused by a fault or failure in a telecommunications network operated by or on behalf of the User or a telecommunications carrier or carriage service provider.
Your DataIn the case of a Production Licence, you will have the ability to customise the Platform (
Customisation). In completing the Customisation, you:
understand and agree that, where DisplaySweet carries out Customisation on your behalf, DisplaySweet will input Your Data in accordance with any specifications or requirements specified by you in the Principal Contract and bears no responsibility for any error in Your Data or its input into the Platform;
warrant that any of Your Data will be free from bugs, malware, malicious code and viruses, or any other thing with the potential to cause harm to the Platform or DisplaySweet’s systems; and
• warrant that Your Data does not infringe on any Third Party IP and DisplaySweet’s use of Your Data on the Platform will not cause it to infringe the rights of any third party.
User Content
8.1 General
You understand and agree that subject to clause 12, DisplaySweet will own all User Content and grants you a non-exclusive, royalty-free, irrevocable, worldwide, assignable and transferable licence to use, reproduce, modify, copy, store and share the User Content:
in the case of a Primary or Secondary Account holder, for business or commercial purposes; or
in the case of any User which is not a Primary or Secondary Account holder, for your personal use only.
You consent to any act or omission which would otherwise constitute an infringement of your moral rights. If a third party has moral rights in your User Content, you must ensure the third-party consents in the same manner.The views expressed in any User Content are the views of Users and not those of us unless specified otherwise. We are not responsible for and disclaim all liability in respect of any User Content. We encourage you to report problems, offensive content or comments and malicious use of the Platform to us.
8.2
Security of content
We will take all reasonable steps to implement, maintain and enforce security procedures and safeguards to protect the security, confidentiality and integrity of the User Content from unauthorised access or use by a third party or misuse, damage or destruction by any person.
However, we do not guarantee and cannot ensure the security of User Content and we expressly exclude liability for any such loss, however caused.
8.3 Prohibited content
You must not create or generate any User Content:
unless you hold all necessary rights, licences and consents to do so;t
hat would cause you or us to breach any law, regulation, rule, code or other legal obligation;
that we consider inappropriate, defamatory, offensive, abusive, indecent, illegal or disparaging;
that would bring us into disrepute; orthat infringes the rights, including intellectual property rights, of any third party.
8.4 Use of User Content
Subject to clause 12, and in recognition that DisplaySweet has the capacity to derive significant insights from the entirety of the data that would be beneficial to both DisplaySweet and the Customer, the Customer acknowledges and agrees that DisplaySweet may access, store, use, modify, develop or reproduce the User Content for the purposes of:performing analytics;conducting research; anddeveloping application insights.
RestrictionsNothing in this Agreement permits you to:disclose the Platform or any online or hardcopy documentation related to the Platform to any third party other than for the purposes contemplated by this Agreement;
adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Platform, unless expressly permitted by law;
sub-licence, lease, rent, loan, assign, novate or otherwise transfer your access to the Platform to any third party;
reverse engineer, reverse compile, decompile or disassemble the object code of the Platform or any part of the Platform (or other underlying data), or otherwise attempt to derive the source code of the Platform;
remove, alter or obscure any DisplaySweet Marks, or any proprietary or restricted use notice on the Platform; ordeal in any other manner with any or all of your rights and obligations under this Agreement.
Updates and Support10.1 Updates
You acknowledge that we may, at our sole discretion, make changes to the Platform by releasing Updates. You are required to accept all Updates, bug fixes, patches or any component thereof and agree that DisplaySweet will have no liability for any failure of the Platform that has been caused or contributed to by your failure to promptly install Updates upon release.
10.1 Support
Unless otherwise agreed, DisplaySweet will not provide any support services to you in respect of the Platform, other than the FAQs and limited help desk services via the details and during the hours of operation set out at www.displaysweet.com.
If you believe that there is a defect in the Platform, it should be reported to DisplaySweet’s support email address which is available 24/7, or our support helpline which is available during business hours.
You can contact DisplaySweet’s technical support on:
Telephone: +61 1300 179 338Email: support@displaysweet.com
DisplaySweet will use its best efforts to provide a remedy or a workaround for any defect in the Platform that is reported to its support helpline in a timeframe that is reasonable, given the nature of the issue and the impact on your business operations.
DisplaySweet shall have no obligation to provide Support:if the Platform does not have the most recent Update installed;
to any adaptations, translations or derivative works made to the Platform; or
for any Evaluation Licence.DisplaySweet shall have no obligation to provide Support where faults arise from:misuse, incorrect use of or damage to the Platform from whatever cause (other than any act or omission by DisplaySweet), including failure or fluctuation of electrical power;
any third party software, hardware or connections which have not been supplied by DisplaySweet;
failure to maintain the necessary environmental conditions for use of the Platform;
any breach of your obligations under this Agreement;
having the Platform maintained by a third party; or
User error.
The costs for Support in respect of the Production Licences are included within the fees that are set out in the Principal Contract. No additional fees are payable by you for the Support for Production Licences. You are responsible for any expenses you incur in using the Support services.
The provision of Support services may result in the loss of User Content or Your Data. DisplaySweet is not liable to any party for any such loss.
FeesUnless otherwise agreed, an Evaluation Licence holder or Secondary Account holder is not required to pay any Fees under this Agreement.In the case of a Primary Account holder, you agree to pay the Fees in accordance with the Principal Contract.
PrivacyWe collect, use and disclose any personal information you provide us when accessing or using the Platform in accordance with our Privacy Policy. For more information on our information collection and handling practices, please view our
Privacy Policy .
You warrant that you have all appropriate consents to disclose and share Personal Information (as defined under the Privacy Act 1988 (Cth)) with DisplaySweet for the purpose of providing the Platform. You must not provide DisplaySweet with any Personal Information where you do not have consent to disclose and share that Personal Information.
Each party must:
comply with all applicable privacy, data protection, cybersecurity and anti-spam laws, regulations, and regulatory guidance (only collect, store, use, disclose or otherwise deal with Personal Information in accordance with all Privacy Laws;only use or disclose Personal Information to the extent necessary to provide, use or provide the Platform and our services;
ensure any person to whom it discloses Personal Information is aware of and complies with the party’s obligations under this clause 11; and
not do any act, engage in any practice, or omit to do any act or engage in any practice that:
would result in a breach of a Privacy Law if the Privacy Law applies to those things done, engaged in or omitted to be done by the party; or
would cause the other party to breach or be taken to breach a Privacy Law.
Intellectual Property
13.1 DisplaySweet Material
We own or are the licensee of all rights, title and interest (including intellectual property rights) in the Platform (including all text information and content, graphics, logos, type forms and Material) made available to you on the Platform (collectively,
DisplaySweet Material ). Your use of and access to the Platform does not grant or transfer any rights, title or interest to you in relation to the DisplaySweet Content.
You must not modify, copy, distribute, transmit, display, perform, reproduce, publish, licence, commercially exploit, reverse engineer, create derivative works from, transfer, or sell any DisplaySweet Content or any other material in whatever form contained within the Platform.Subject to your compliance with the terms of this EULA, we grant you a non-exclusive, non-transferable, non-sublicensable and revocable licence to use the Platform strictly for the purpose contemplated by this EULA.
13.2 Developed Material
DisplaySweet will own, and you hereby assign to DisplaySweet on creation, all existing and future Intellectual Property Rights in and to any Developed Material. You must do all things necessary to assign or transfer ownership of Developed Material to DisplaySweet.
DisplaySweet grants to you a royalty free, revocable, worldwide, non-exclusive licence to use, the Developed Material for the purposes of this Agreement.In using the right granted to it by DisplaySweet in clause 13.2(b), you concede that you will not be in any way, in breach of your obligations under this Agreement.
Links to third party sitesYou acknowledge and agree that you may be linked to third party sites through your use of the Platform. Any third party sites are not under our control and we are not responsible for the content of any third party sites, any links contained therefrom, or any changes or updates to third party sites from time to time.
We are not responsible for any form of transmission received from any third party sites.
Any link to a third party site from within the Platform is provided for convenience only and the inclusion of any such link does not imply an endorsement of the site, or its content, by us.
Warranties and limitation of liabilityTo the fullest extent permitted by law, we are not liable to you for any losses, damages, liabilities, claims and expenses incurred by or arising out for or in connection with your use of or inability to use the Platform or Material except to the extent that such loss arises from a third-party claim against you alleging that the Platform infringes their intellectual property rights. To the fullest extent permitted by law, our total aggregate liability for all claims relating to this EULA is limited to the total fees payable under the Principal Contract for the previous 12 months.
You acknowledge and agree that DisplaySweet does not represent or warrant that:any result or objective can or will be achieved as a result of your use of the Platform;
access to the Platform will be continuously available; and
the Platform will be fit for purpose, continuous, uninterrupted, accurate, error free, virus-free, secure or accessible at all times.
You warrant to us that:
you have the authority to grant the licences under this Agreement;
you have attended to all backups, and have maintained copies of, Your Data and you acknowledge that we are not responsible for maintaining or storing Your Data;
the use by us of Your Data will not result in any unauthorised use of the rights of any person;
you have the authority to enter into, perform and observe your obligations and rights under this Agreement; andyou have the authority to agree to this Agreement and you acknowledge and agree that, by using the Platform, you bind anyone who accesses the Platform under your authority to the performance of any and all obligations that you become subject to by virtue of this Agreement without limiting any of your obligations under this Agreement.
You acknowledge and agree that DisplaySweet will not be liable for any losses, damages, liabilities, claims and expenses caused or contributed to by:
a fault or defect in any Third Party Resources;
external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge, problems with electrical power, or electrical spike;
the use of the Platform not in accordance with its instructions or for any purpose other than its intended purpose;
the performance of maintenance or attempted repair of the Platform by persons other than DisplaySweet or as authorised by DisplaySweet;
any configuration or reconfiguration of the Platform by a User; or
any negligence or breach of this Agreement by the User.
IndemnificationYou agree to indemnify us for all losses, damages, liabilities, claims and expenses (including reasonable legal costs) incurred by us arising out of or in connection with:the use of the Platform, Material, User Content or Your Data;any negligent act or omission; andany breach of the EULA or any rights of third parties,by you or anyone directly or indirectly authorised or allowed to use or access the Platform by you.
Force MajeureExcept for your obligations to pay DisplaySweet under this Agreement, neither party shall be in breach of this Agreement nor liable to the other party for any failure or delay in performance caused by events beyond the party's reasonable control.
Dispute ResolutionA party must not commence legal proceedings relating to this Agreement unless the party wishing to commence proceedings has complied with this clause 18. However, this clause will not apply where a party seeks urgent interlocutory relief from a court.If a dispute arises between the parties out of or relating to this Agreement, then:the party alleging the dispute must notify the existence and nature of the dispute to the other party within 10 days of the dispute arising ( Noticeupon receipt of a Dispute Notice, the parties must, within 5 days, engage in good faith negotiations and use best endeavours to resolve the dispute;if the dispute is not resolved as provided in paragraph (ii) within 5 days of receipt of the Dispute Notice, then either party may refer the dispute to mediation as provided in paragraph (iv) and must do so before initiating proceedings in a court to resolve the dispute;any dispute which is referred to mediation must be referred to the Resolution Institute and must be conducted in accordance with the Mediation Rules of the Resolution Institution or the parties may appoint a mediator by mutual agreement; andif the dispute is not resolved within 30 days of referral to mediation, any party is free to initiate proceedings in a court in respect of the dispute.
TerminationThis EULA may be terminated:in the case of an Evaluation Licence, at any time by ceasing to use or access the Platform or by closing your account within the Platform; orin the case of a Production Licence:in accordance with the Principal Contract; orimmediately for cause by DisplaySweet by giving you written notice if you:breach any of the provisions of clauses 12 (Privacy), 13 (Intellectual Property)or 15 (Warranties and limitations of liability);breach any other provision of the Agreement and you do not remedy it within 14 days of DisplaySweet providing you written notice of the breach;commit any material breach of the Principal Contract;cease to carry on business, are unable to pay your debts as they fall due, you enter into liquidation or have a controller, managing controller, liquidator or administrator appointed or suffer any similar event in any jurisdiction; ormerge with, sell substantially all of your assets, or you are subject to a change of control. A "change of control" will be deemed to occur when an entity acquires fifty percent (50%) or more of your voting shares or equity interest, or fifty percent (50%) or more of your assets, in the event of a change of a majority of your Board of Directors (or majority of the partners if a partnership), or if there is any other effective change of control.You may immediately terminate this Agreement for cause by giving DisplaySweet written notice if DisplaySweet:breaches any of the provisions of this Agreement and does not remedy it within 30 days of you providing DisplaySweet with written notice of the breach; orceases to carry on business, is unable to pay its debts as they fall due, enters into liquidation or has a controller, managing controller, liquidator or administrator appointed or suffer any similar event in any jurisdiction.If this Agreement terminates:any licence for the Platform and its related Support terminates immediately; andyou must ensure that all copies of the Platform installed pursuant to this Agreement are uninstalled and deleted from all hardware in your possession or control within 14 days of the date this Agreement is terminated; andin the case of a Production Licence, where access by Users with an Evaluation Licence has been granted in accordance with a Primary Account or a Principal Contract, such access will continue in accordance with the User’s Evaluation Licence, subject to any restrictions or limitations caused by the termination of the Production Licence, for which DisplaySweet shall bear no responsibility.Any termination of this Agreement shall not prejudice, limit or restrict any other rights or remedies either party may have arising prior to such termination. To the extent permitted by law, DisplaySweet shall be under no obligation to refund any amounts paid by you for the Platform that has been provided prior to any termination of this Agreement.
General20.1 Entire AgreementThis Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with this subject matter.
20.2 NoticesA notice, consent, approval, waiver or other communication provided in connection with this EULA must be in writing. A notice may be given by hand delivery, post or by email and is effective upon receipt.
20.3 Relationship of the partiesThe parties to this Agreement are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
20.4 Compliance with lawsYou must comply with all laws which are relevant to you performing your obligations under this Agreement.
20.5 AssignmentYou must not assign or otherwise deal with all or any party of its rights or obligations under the EULA without our prior written consent (which may not be unreasonably withheld but which may be given subject to reasonable conditions). We may assign or otherwise deal with any of our rights or obligations under the EULA without your prior consent.
20.6 Electronic ExecutionIn the case of a Production Licence, execution of this EULA may be required in conjunction with the Principal Contract, in which case, the party to the Principal Contract may execute this Agreement electronically.
20.7 WaiverNo failure or delay by a party 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20.8 Cumulative remediesExcept as specifically provided otherwise in this Agreement, the rights and remedies provided under this Agreement are cumulative and in addition to, and not exclusive of, any rights or remedies provided by law.
20.9 SeverabilityIf any part of this Agreement is determined to be invalid, illegal or unenforceable by any court or competent authority, such part will be severed from the remainder of the Agreement and the remaining provisions will continue in force.
20.10 SurvivalAll clauses which naturally survive termination of the Agreement, including clauses 12 (Privacy), 13 (Intellectual Property), 15 (Warranties and limitation of liability), 20.2 (Notices), 20.10 (Survival) and 20.11 (Jurisdiction), will survive termination of this Agreement.
20.11 JurisdictionThis Agreement is governed by the laws in force in Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts of Victoria, Australia.
Definitions and interpretation21.1 DefinitionsIn this Agreement, the following definitions apply:
Agreement means the terms and conditions in this EULA, our
Privacy Policy and (if applicable) any details in the Principal Contract, as may be amended by a Variation;
Developed Material means all Material in any form (whether visible or not) brought or required to be brought into existence by or on your behalf pursuant to this Agreement, other than Third Party IP;
DisplaySweet Marks means all trade marks, service marks, logos or other words or symbols identifying the Platform, Support or DisplaySweet’s business.
Effective Date means:for an Evaluation Licence, the first date you accessed the Platform; orfor a Production Licence, the date outlined where the person clicked "I Agree" during the sign-on process.
Evaluation Licence means the right to use the Platform in accordance with clause 5.1;
Fees means the fees payable by you to DisplaySweet pursuant to the Principal Contract, as applicable;
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999
Intellectual Property Rights means copyright, moral rights, trade mark, design rights, service marks, patent, semiconductor or circuit layout right, trade secrets, know-how, database rights or other rights in the nature of intellectual property rights (whether registered or unregistered), or any right to registration of such rights, existing anywhere in the world, or protected by statute from time to time, whether created before, on or after the Effective Date;
Material means material in whatever form, including without limitation documents, specifications, reports, products, equipment, information, data, graphic layouts, images and software;
Primary Account means the primary User account held by the party to the Principal Contract, which bears responsibility for any Secondary Accounts;
Principal Contract means the contract between DisplaySweet and the Primary Account holder granting a Production Licence, which governs the parties’ relationship and sets out, among other things, the maximum number of Users (or other licence metric as applicable) and applicable Fees, that are advised to you, or to which you have otherwise agreed in writing with DisplaySweet;
Production Licence ;means the right to use the Platform in accordance with clause 5.2, which is subject always to the Principal Contract;
Referral Partner means a business or individual that refers customers to DisplaySweet;
Representatives means the employees, agents, contractors of a party to this Agreement, and the professional representatives of a party providing advice in relation to this Agreement, including the lawyers, bankers, auditors, accountants and insurers of a party;
Secondary Account means an Account held by a User who is not the Primary Account holder under a Production Licence;
Support means the services provided by DisplaySweet described in clause 10;
ThirdParty IP means Intellectual Property Rights in Material owned by a third party;
Update means any improvements, added functionality, performance enhancements (whether or not defects are also corrected), bug fixes, patches or workarounds for the Platform that have been produced primarily to overcome defects in the Platform or increase functionality;
User means an identifier (individual's name or generic term such as "purchasing officer") that is listed as a user on the Platform. Any User that is defined by a generic term may only be used by a single individual. All Users who hold a Primary or Secondary Account are included in aggregate in the total number of Users.
Variation means any addition, deletion or substitution to any part of this Agreement or the Principal Contractor that is made in accordance with this Agreement or the Principal Contract;
You or your means the person who installs, uses or licences the Platform and who, by so doing, accepts this Agreement; and
Your Data means:any data concerning you or any User of the Platform authorised by you to input that data; andany data that you or any person with your authority inputs into the Platform by any means.
21.1 Interpretation In this Agreement:an obligation or liability assumed by, or a right conferred on two or more parties binds or benefits them all jointly;no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement; andparties must perform their obligations on the dates and times fixed by reference to Melbourne, Victoria.