Permission to use CommunitiLink CMS data and Communitilink Resident mobile app is conditional upon you agreeing to the terms set out in this end user license agreement and limited warranty (“EULA”). This EULA sets out the
basis upon which we permit you to use the Communitilink CMS data and Communitilink Resident mobile app and includes an indemnity by you, warranty disclaimers, limitations of liability by us and a limited warranty. By clicking to accept this EULA and/or installing the Communitilink mobile app or using the Communitilink CMS data, you agree to be bound by this EULA, and you agree that this EULA is enforceable like any written contract signed by
you. If you do not wish to accept these terms, we do not authorise you to install or use the Communitilink mobile app or use the Communitilink CMS data.
In this EULA: “we”, “us”, “our” and “Communitilink” means ResVu Pty Ltd ACN 620 204 337; “App” means the Communitilink Mobile App that we make available for download from our website or third-party app stores from time to time; “CMS Data” is any information, data or other content contained or comprised in, or accessible or generated through the use of our website at [http://www.communitilink.com.au]; and “Communitilink Platform” is the system which makes information about your building available to you via the App, CMS Data and otherwise displayed on digital screens in your building and your app is a component of the Communitilink Platform. App, CMS Data and any additional software, data or hardware and including Digital Screens that together comprise the Communitilink system.
2. Your rights to use the App and access CMS Data
2.1. Title and ownership
of all proprietary rights, including any copyright, patent, trade secret, trademark or other intellectual property rights, in and to the, CMS Data and App, and any copies thereof, remains the property of us or our licensors, and the source code underlying the App is our confidential and proprietary information. No ownership rights in the CMS Data or App or any copy thereof are being sold to you. Subject to the terms of this EULA, we grant you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, perpetual license to use the CMS Data and App solely for your personal, non-commercial purposes (if you are an individual) or for your own internal business purposes (if you are a business). Certain items of software included with the CMS Data and App are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
2.2. The license granted under clause 2.1 is subject to, and you must comply with,
the following conditions:
(a) you are only licensed to use the CMS Data and App in conjunction with the Communitilink Platform. You must not use the CMS Data or App independently of the Communitilink Platform (for example, by registering the App with a content management system or any other system not owned by us);
(b) you must not copy, reproduce, translate, adapt, vary, modify, prepare derivative works from, publicly perform or publicly display any portion of the CMS Data or App without our written consent, except as expressly authorised by this EULA;
(c) you must not decompile, reverse engineer or otherwise attempt to derive the algorithms by which any portion of the App operates (except to the extent applicable laws specifically prohibit such restriction);
(d) you must not sell, rent, sublicense, distribute, transmit, disclose, publish, assign or otherwise transfer any rights in the CMS Data or App without our prior written consent;
(e) you must not permit any third party to benefit from the use or functionality of App via a timesharing, service bureau or similar arrangement; and
(f) you must not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels displayed in the CMS Data or the App.
2.3. The CMS Data and App and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of us and our licensors. The CMS Data and App (and any copies thereof) are licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. Any intellectual property rights in the CMS Data and App not expressly granted to you are reserved, except that nothing in this EULA excludes or limits your rights to make reproductions of the CMS Data and App where, and to the extent that, such exclusions or limitations are not permitted by, or not effective at, law.
2.4. Rights in any trademarks used in association with the CMS Data and App are retained by us or our licensors. You will not use any of our trade marks without our written consent.
2.5. The App is designed to communicate over the internet. You acknowledge that transmitting data over the internet is not 100% secure or free from risk of compromise.
2.7. You agree to indemnify, defend, and hold harmless us, our affiliated companies, and our and their respective officers, directors, employees, subcontractors and agents (“Indemnitees”) from and against any claims, suits, investigations and actions, including any associated loss (including reasonable costs and expenses), damage, cost, expense or other liability, brought by any third party against any Indemnitee to the extent based on or arising from any failure by you to comply with this EULA. You shall not settle any such claim without our consent unless such settlement forever and completely release the indemnitees from all liability with respect to such claim. We shall not be obligated to indemnify, defend or hold you harmless with respect to any third-party claims arising out or relating to the CMS Data or App, including without limitation any claims for intellectual property infringement.
3. Warranty Disclaimer for App
The App is provided “as is.” We make no warranty of any kind, either express or implied, with respect to the App. To the maximum extent permitted by law, we expressly disclaim any warranty of merchantability, fitness for a particular purpose or non-infringement. Without limiting the foregoing, we make no warranty that the App will be error-free or free from interruptions or other failures or that the App will meet your requirements. Some jurisdictions do not allow some of the foregoing exclusions or limitations, so some of these exclusions or limitations may not apply to You.
4. Limitation of Liabilities
4.1. The user agrees that it uses CommunitiLink at its own risk.
4.2. If you purchased or use the App in Australia, the App comes with guarantees that cannot be excluded under the Australian Consumer Law, including guarantees that the App will be of acceptable quality and reasonably fit for purpose. Where conditions, warranties or guarantees implied by or otherwise arising under applicable law cannot be lawfully excluded, then to the extent permitted by law, we limit our liability for a breach of any such condition, warranty or guarantee, where we are entitled to do so, at our option, to the following: in respect of services, the resupply of the relevant services or paying the cost of that resupply; and, in respect of goods, the repair or replacement of the relevant goods or paying the cost of that repair or replacement.
4.3. In no circumstances will we be liable for any direct, incidental, consequential or indirect damages, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use CommunitiLink, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not we knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
4.4. We are not liable for any internet access or data usage fees or charges associated with your use of the CMS Data or App or access to any information provided through our website or any third party website or otherwise.
4.5. We will have no liability with respect to the Open Source Software or your use thereof.
4.6. To the maximum extent permitted by law, we and our affiliated companies and licensors will not be liable to you or any other person for any special, incidental, indirect, exemplary, punitive or consequential damages, loss of revenue, loss of profits, loss of data, loss of goodwill or credit, loss of reputation or future reputation or publicity or loss of anticipated savings, however caused (whether by negligence or otherwise), arising out of or relating to this EULA, the App or the CMS Data, even if we know or have been advised of the possibility of such loss or damage.
4.7. If we or our affiliated companies or licensors are liable to you for damages (on any basis, including negligence) under or in connection with this EULA, the App or the CMS Data, then to the maximum extent permitted by law, the maximum aggregate liability of us, our affiliated companies and licensors for those damages will not exceed the total amount of the purchase price or fees you have paid to us (or our authorised resellers) to obtain the App or CMS Data. These limitations shall apply notwithstanding any failure of essential purpose of any remedy. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this EULA would be substantially different. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to you. Nothing in this EULA excludes or limits any liability of us that cannot be excluded or limited under applicable law.
5.1. Nothing in this EULA entitles you to support or maintenance services, updates or new releases in respect of the App. However, if we in our absolute discretion supply you with updates or new releases in respect of the App, then they will be subject to this EULA. You are solely responsible for the installation of any update or new release.
6. Term; Termination
6.1. This EULA and the licenses granted hereunder are effective on the date you first use the App or CMS Data and shall continue until this EULA is terminated under this section. We may terminate this EULA immediately:
(a) without notice at any time if you fail to comply with any term(s) hereof;
or (b) otherwise for any reason by notice to you in writing. You may terminate this EULA effective immediately upon written notice to us. Upon termination of this EULA, the licenses granted hereunder will terminate and you must stop all use of the App and CMS Data, but the definitions and the rights, duties and obligations of the parties that by their nature continue and survive (including, without limitation, the provisions concerning ownership, limitation and exclusion of liability, indemnity and the warranty disclaimers) shall survive any termination of this EULA.
7.1. Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect. This Agreement is binding upon and is for the benefit of the respective successors and assigns of the parties hereto.
7.2. Failure or neglect by either party to enforce at any time any of the provisions of this EULA will not be construed or deemed to be a waiver of that party’s rights under this EULA. A waiver of any default is not a waiver of any subsequent default.
7.3. This EULA contains the entire agreement between you and us concerning the subject matter hereof and supersedes any other prior or contemporaneous oral understanding or agreement or any other prior written agreement regarding this subject matter.
7.4. If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
7.5. You agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of South Australia and the parties submit to the non-exclusive jurisdiction of the courts of South Australia. Notwithstanding the foregoing, a material breach of this EULA adversely affecting our proprietary rights would cause irreparable harm to us for which a remedy at law would be inadequate, and we will be entitled to seek injunctive relief in any court having jurisdiction to protect our intellectual property or confidential information. The courts in some countries will not apply South Australian law to some types of disputes. If you reside in one of those countries, then where South Australian law is excluded from applying, your country’s laws will apply to such disputes related to these terms. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8. Provisions Relating to the Apple App Store
This EULA is between you and us only, and not Apple, Inc. (“Apple”). We, not Apple, are solely responsible for the App and the content thereof. Notwithstanding the foregoing, Apple has the right to enforce this EULA against you as a third party beneficiary. You may only install the App on an iPhone, iPod Touch, iPad, or other Apple device as permitted by Apple’s App Store Terms of Service. To the extent that any technical support is required by applicable law, we, not Apple, shall be obligated to furnish any such support. To the extent we are required by applicable law to provide any indemnification of third party claims, we, not Apple, shall be solely responsible for the investigation, defence, settlement and discharge of any such claim. Nothing in this EULA shall be deemed an admission that any such claims may arise. We, not Apple, are responsible for addressing any of the following claims by you relating to the App: (i) any product liability claim; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this EULA shall be deemed an admission that you may have any such claims.
9. Provisions Relating to the Google Play Store
This EULA is between you and us only, and not Google LLC. (“Google”). We, not Google, are solely responsible, and Google will have no responsibility, to undertake or handle support and maintenance of the App and any complaints about the App. To the extent that any technical support is required by applicable law, you must contact us, not Google. We agree to respond to your customer support enquiries within three business days, and within 24 hours to any support concerns stated to be urgent by Google. To the extent we are required by applicable law to provide any indemnification of third party claims, we, not Google, shall be solely responsible for the investigation, defence, settlement and discharge of any such claim. Nothing in this EULA shall be deemed an admission that any such claims may arise. We, not Google, are responsible for addressing any of the following claims by you relating to the App: (i) any product liability claim; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this EULA shall be deemed an admission that you may have any such claims.
10. Contact Information
ResVu Pty Ltd 10 Pultney Street, Adelaide, SA, 5000 (08) 7477 8999