(a) This end user licence agreement (EULA) is a binding agreement between you and Keyvision Pty Ltd (ABN 50 061 055 176) (we, our, us) for access to and use of our member and community engagement, place management and place activation software (Mobile App).
(b) To access and use the Mobile App you must be, and you warrant and represent that you are an authorised user of the organisation that has facilitated your access to use the Mobile App. We refer to such organisation as our Customer and you being a Member.
(c) By clicking the ‘I accept’ button or otherwise accessing or using the Mobile App, you agree that you have read, understood and will be bound by this EULA. If you do not agree with the terms of this EULA, you must not access or use the Mobile App.
(d) To the extent the terms of this EULA are inconsistent with the terms of our standard subscription agreement that governs access to and use of our cloud-based member and community engagement, place management and place activation platform (Keyvision Platform) between us and our Customer (Subscription Agreement), the terms of this EULA will not apply to the extent of such inconsistency (as between us and our Customer).
We grant you a personal, non-exclusive, non-transferable, revocable licence (Licence) to use the Mobile App by loading or installing the Mobile App onto your electronic device this EULA is displayed (Device) solely your internal, non-commercial purposes and otherwise described in this EULA (Permitted Purpose).
The Licence granted to you under this EULA authorises you to use the Mobile App solely for the Permitted Purpose and you must not use the Mobile App for any other purpose. Without limiting the above, you must not:
Generally, the kinds of personal information Keyvision collects are:
(a) make any copies of the Mobile App;
(b) modify, adapt, translate, reverse engineer, de-compile, disassemble or copy all or any part of the Mobile App;
(c) attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the Mobile App;
(d) distribute any part of the Mobile App for commercial purposes or otherwise sub-licence or resell the Mobile App;
(e) create derivative works from all or any part of the Mobile App;
(f) transfer, assign, rent, lease, lend, sell or otherwise dispose of all or any part of the Mobile App; or
(g) publish, communicate or otherwise make any part of the Mobile App publicly available.
You must:
(a) comply with all applicable laws of your jurisdiction in connection with your access and use of the Mobile App;
(b) keep your username and password in connection with accessing the Mobile App confidential, and not disclose your username and password to any third party without our prior written consent;
(c) ensure your Device complies with our minimum hardware and operating requirements as notified by us from time to time;
(d) be, and agree that you are, solely responsible for all your data and information used in connection with or inputted into the Mobile App (Relevant Data), including in respect of the accuracy, completeness, integrity and your right to use the Relevant Data, including rights in relation to:
(i) any Intellectual Property Rights of any third party; or
(ii) any personal information or sensitive information of any third party (as those terms are defined in the Privacy Act 1988 (Cth)); and
(e) ensure you have all necessary rights, approvals and consents required for us to collect, use, store, copy, transfer, and modify the Relevant Data as required for the Mobile App to be used by you for the Permitted Purpose and otherwise in accordance with this EULA (and you indemnify us for any loss that we may suffer in connection with such activities directly relating to our use of the Relevant Data for these purposes to the maximum extent permitted by law).
You agree to:
(a) register as a user of the Mobile App, which may require you to:
(i) input directly through the Mobile App certain personal information and other information relevant to the property or facility of which you are using or accessing as a Member;
(ii) submit details required for registration directly to our Customer, including any relevant lease agreement or other details as notified to you by our Customer;
(iii) respond to any email invitations or on-boarding requests relating to your registration for the Mobile App, as notified or sent to you by us or our Customer;
(b) set up your user profile following the initial on-boarding process being completed, which will require you to input additional personal information relevant to our provision of the Mobile App to you.
(a) You must register and comply with instructions notified to you through the Mobile App to contribute to any interactive forum (for the purposes of this clause ‘interactive forum’ includes any message board, chat board, or similar interactive service provided by us through the Mobile App).
(b) You must not:
(i) post on any interactive forum any material that is libellous, defamatory, obscene, abusive, invades a person’s privacy, violates any intellectual property rights, is not otherwise suitable for a general audience, or that would otherwise violate any law;
(ii) use any forum in a commercial manner, unless such use relates to services or functionality that is specifically permitted or provided through the Mobile App, including any member ‘buy, sell, trade or advertising’ functionality;
(iii) post material known to be false or misleading.
(c) We are not responsible for material appearing in any interactive forum. We are not responsible for screening material posted by users for libel, obscenity, invasion of privacy, copyright or trademark infringement, accuracy, or for any other reason.
(d) We have the right (but not the obligation) to:
(i) modify or remove messages or other material that we consider, in our sole discretion, breach this clause 4.3; or
(ii) ban or suspend any Member from accessing or using the Mobile App where in our sole discretion we determine that the relevant Member has not complied with its obligations under this clause 4.3 or with any other provision of this EULA.
(a) We own all rights, title and interest in and to the Mobile App and you agree you do not have any ownership of the Mobile App or other rights in respect of the Mobile App, including any Intellectual Property Rights, other than the Licence granted to you under this EULA.
(b) For the purposes of this EULA, the term Intellectual Property Rights includes all patents, designs, copyright, trade marks, source code, object code, database rights, trade secrets and any right to apply for the registration or grant of any of the above.
Unless we agree otherwise in writing, you will be responsible for installing the Mobile App on your Device and otherwise integrating the Mobile App with your Device’s software and systems and we will have no installation or integration obligations to you in relation to the Mobile App.
(a) We provide you our standard technical support services through our ‘report a bug’ functionality in our Mobile App. You acknowledge and agree that we may provide other online support services to you in our sole discretion as we may notify you from time to time.
(b) Unless we agree in writing, we will not have any obligations to provide any additional support services to you in respect of the Mobile App including (without limitation) development or customisation services, technical support, training or maintenance services or any support services in relation to the property or building managed by our Customer.
You acknowledge and agree that:
(a) for certain functions of the Mobile App to properly operate, third party software may need to be integrated or installed on your Device as may be notified by us to you and/or our Customer from time to time (Third Party Software);
7.1. Third party Software (continued)
(b) you and/or our Customer is responsible for obtaining any necessary licences for any Third Party Software at your and/or our Customer’s cost; and
(c) we are not responsible for procuring or otherwise providing any Third Party Software to or for you and the contractual relationship in respect of the relevant Third Party Software provider is between you and/or our Customer.
These terms and conditions apply only to Keyvision, and not to the sites of any other companies or organisations, including those to which Keyvision may link (Third Party Websites). We are not responsible for the availability of any Third Party Website to which Keyvision links. We do not endorse or take responsibility for the content, advertising, products or other materials made available through any Third Party Website. Under no circumstances will we be held responsible or liable, directly or indirectly, for any loss or damage that is caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, goods or services available on any Third Party Website.
You agree that:
(a) we may update, upgrade, or undertake maintenance of the Mobile App at any time (provided however that we have no obligation to provide such updates or upgrades to you pursuant to this EULA); and
(b) vary, add, or delete functions or features of the Mobile App provided that the performance of the Mobile App is not materially adversely affected as a result of these activities.
You acknowledge and agree that in connection with the Licence granted to you under this EULA, we may collect your personal information (as that term is defined in the Privacy Act 1988 (Cth)). Our privacy policy sets out our collection, use and disclosure practices in relation to personal information and can be accessed at www.kindredbykeyvision.com.au/privacy.
We are committed to protecting your privacy and security. Keyvision will not use or disclose any personal information for a purpose other than performing its obligations under the EULA and the relevant Subscription Agreement.
We expressly exclude from this EULA all conditions, warranties, guarantees and terms which may be implied into this EULA by statute, custom, or general law and are capable of being excluded, provided however this exclusion will not apply to the extent that:
(a) you acquire goods or services from us under this EULA as a consumer for the purposes of the Australian Consumer Law (ACL); and
(b) the consumer guarantees under the ACL apply in respect of those goods or services.
To the extent that:
(a) you suffer any loss or have any claim against us for breach by us of any condition, warranty or guarantee in relation to any goods or services provided by us under this EULA which condition, warranty or guarantee is imposed under the ACL or any other comparable legislation and cannot be excluded (including, without limitation, any applicable consumer guarantees); or
(b) you suffer any other loss or have any other claim against us in connection with any goods or services provided by us under this EULA or the performance of our obligations under this EULA including (without limitation) any claim for breach of contract or negligence,
our liability for such loss or in respect of such claim will be limited, to the extent permitted by law, at our election and discretion to:
(c) if the breach relates to goods:
(i) the replacement of goods or the supply of the equivalent goods;
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) if the breach relates to services:
(i) the re-supply of the services; or
(ii) the payment of the cost of having the services supplied again.
For the avoidance of doubt, this clause 11.1 does not apply to any claim you may have against us for breaching the consumer guarantee provisions of the ACL where the goods or services the subject of the claim are goods or services which are of a kind ordinary acquired for personal, domestic or household use or consumption (for the purposes of the ACL).
You are liable for, and indemnify us and each of our directors, officers, employees, agents, contractors and related bodies corporate (Indemnified Parties) and keep each of them indemnified, any damage, cost, loss, expense or liability of any kind (excluding Consequential Loss) (Loss) suffered or incurred by an Indemnified Party which arises from or in respect of:
(a) any breach by you of this EULA; or
(b) any negligent, or wilful act or omission, misconduct, dishonesty or fraud committed by you, your agents, representatives, delegates or contractors,
except to the extent that such Loss was directly caused or contributed to by us.
Notwithstanding any clause in this EULA, neither party will be liable to the other party for any Consequential Loss (except to the extent such loss was caused by the defaulting party’s breach of the other party’s Intellectual Property Rights, fraud or wilful default) . For the purposes of this EULA, Consequential Loss means indirect loss, loss of profits, loss or revenue, loss of savings, loss of opportunity, loss of goodwill, or any analogous loss.
(a) Subject to clause 12(c), you acknowledge and agree this EULA will terminate immediately on the earlier of:
(i) if applicable, the expiry or termination of the Subscription Agreement between us and our Customer; and
(ii) any breach by you of this EULA.
(b) You must cease using the Mobile App immediately on the termination of this EULA and do all things reasonably required by us in connection with the termination of this EULA.
(c) Notwithstanding clause 12(a), you agree clause 11.2 and clause 11.3 will survive the termination of this EULA and continue to bind you.
This EULA will be governed by and construed exclusively under the laws of the State of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and the Federal Court of Australia.
You may not assign or otherwise deal with any of your rights or obligations under this EULA without our prior written consent. We may assign, novate or otherwise deal with our rights under this EULA at any time effective immediately upon us notifying you of the assignment or novation.
This EULA constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
This EULA does not create a relationship of employment, agency, partnership or joint venture between the parties.
This EULA may only be amended or varied by us providing you reasonable prior notice of the amendments, including by sending you an email with the updated terms or otherwise notifying you in writing.
No failure to exercise or delay in exercising any right given by or under this EULA to a party constitutes a waiver and the party may still exercise that right in the future.
If any provision of this EULA is invalid or not enforceable in accordance with its terms in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this EULA or affecting the validity or enforceability of that provision in any other jurisdiction.