Apmasphere Platform – End User Licence Agreement Definitions

Agency Owner means a legal personality or entity which is the operator or owner of a real estate business and is not a Network Member or Network Owner. An Agency Owner may include an individual sole trader, a partnership or a body corporate. 

  1. Business Data means any business information uploaded to the Apmasphere Platform by the End User. 
  2. Delegate means an employee, contractor or other representative of an End User who interacts on or with the Apmasphere Platform (using his or her own personal access credentials) on behalf of, and as agent for, the relevant End User (for example, by purchasing Modules on behalf of the relevant End User). 
  3. End User means any legal personality or entity which enters into this EULA with Apmaspheric and interacts on or with the Apmasphere Platform. An End User may be a User, Agency Owner, Network Member, Network Owner or other legal entity. Where the End User:
      1. is a User, the End User interacts on or with the Apmasphere Platform either:
        1. himself or herself directly; or 
        2. through a Delegate; and
      2. is not a User (for example, the End User is an Agency Owner, Network Member, Network Owner or other corporate  entity), the End User interacts on or with the Apmasphere Platform through a Delegate.  
  1. End User Data means any data uploaded or created by a Apmasphere Participant when interacting on or with the Apmasphere Platform. 
  2. EULA means this End User Licence Agreement.
  3. Apmaspheric means Apmaspheric Pty Ltd (ACN 608 601 485).
  4. Apmasphere Marketplace means the forum on the Apmasphere Platform that allows Apmasphere Participants to search for, review and subscribe to Modules.  
  5. Apmasphere Participant means an individual who interacts on or with the Apmasphere Platform, whether he or she does so in a personal capacity as a User, or on behalf of, and as agent for, an End User as a Delegate.
  6. Apmasphere Platform means the platform offering a communication and practice management service, found at halo.apmasphere.com or a designated branded URL, including its Modules.
  7. Apmasphere Platform Content means the Intellectual Property Rights in the Apmasphere Platform itself (including data, text, graphics, logos, audio and software, and any compilations of such materials). Apmasphere Platform Content does not include Provider Data, End User Data or the content of Modules.
  8. Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in confidential information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which subsist or may hereafter subsist anywhere in the world.
  9. Laws means any applicable law, statute, regulation, by‑law, ordinance or subordinate legislation in force from time to time, whether made by a State, Territory, Commonwealth, or a local government, and includes common law and the principles of equity as applicable from time to time, and any applicable legally binding industry codes of conduct.
  10. Module means a module provided by or on behalf of Apmaspheric or another Module Provider for use by a Apmasphere Participant on the Apmasphere Platform, such use to be governed by the Module Terms.
  11. Module Provider means an entity (being either Apmaspheric or a third party) offering a Module through the Apmasphere Marketplace.
  12. Module Terms means, in relation to a Module, the separate terms between the Module Provider and an End User governing the End User's access to and use of the Module. 
  13. Network means a network of Network Members that is operated as a franchise system, led by the Network Owner. 
  14. Network Member means a legal personality or entity which is the operator of a real estate business that forms (pursuant to an arrangement with the Network Owner) part of a Network which may include an individual sole trader, a partnership or body corporate. 
  15. Network Owner means a legal personality or entity which is the franchisor of a Network. 
  16. Permitted Purposes means:
    1. where End User is a User, End User's personal purposes; and 
    2. where End User is not a User (for example, End User is an Agency Owner, Network Member, Network Owner or other corporate entity), End User's legitimate real estate business purposes, 
  17. as applicable, but excludes seeking to commercialise the Apmasphere Platform, Apmasphere Platform Content or any Provider Data, or distributing them or otherwise making them available other than in accordance with this EULA.
  18. Privacy Act means the Privacy Act 1988 (Cth). 
  19. Provider Data means any new data created by Module Providers (including by conducting analytics on and aggregating End User Data and other information).
  20. Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
  21. Term has the meaning given to that term in clause 5.
  22. Uploaded Personal Information means any personal information (as that term is defined in the Privacy Act) uploaded or made available by a Apmasphere Participant via the Apmasphere Platform.  
  23. User means an End User who is an individual who enters into this EULA with Apmaspheric, and interacts on or with the Apmasphere Platform, in a personal legal capacity (for example, a landlord, tenant or real estate professional). 

General

      1. This EULA is a binding agreement between End User and Apmaspheric.
      2. End User may access and use, and permit its Delegates to access and use on its behalf, the Apmasphere Platform and Apmasphere Platform Content only as permitted by this EULA and any Apmaspheric policies posted on the Apmasphere Platform (for example, policies relating to the security of access credentials). 
      3. By accessing and/or using the Apmasphere Platform or Apmasphere Platform Content, End User agrees to be bound by this EULA. If End User does not agree to any of part of this EULA, it must not access or use the Apmasphere Platform or Apmasphere Platform Content.
      4. Where End User accesses and uses the Apmasphere Platform and Apmasphere Platform Content through its Delegate(s), End User agrees that:
        1. it will ensure that all of its Delegates have been properly authorised by End User to access or use the Apmasphere Platform on behalf of End User; 
        2. it will ensure that all of its Delegates comply with the terms of this EULA, all policies incorporated into it by reference and all policies on the Apmasphere Platform; and
        3. it is fully responsible for any access or use of the Apmasphere Platform or Apmasphere Platform Content by its Delegates (with any acts or omissions of its Delegates being deemed to be the acts or omissions of End User). 
      5. All Delegates, and all Users, must be at least 18 years of age.
      6. To the extent of any inconsistency between the terms of this EULA and a policy incorporated it into it by reference, the order of priority (from highest to lowest) for the purpose of any interpretation is:
        1. this EULA; then
        2. any policies incorporated by reference. 
      7. Module Terms may apply where End User accesses or uses a Module via the Apmasphere Platform. Where Apmaspheric is the Module Provider, and there is any inconsistency between the relevant Module Terms and this EULA, the Module Terms will apply to the extent of the inconsistency. 

Amendment to EULA

      1. Apmaspheric may in its sole discretion modify or replace any part of this EULA. Apmaspheric will give End User seven days' notice of any change by notifying End User at the contact details supplied and publishing a notice and the amended EULA on its website. End User is responsible for checking Apmaspheric's website for changes to this EULA.
      2. End User's continued use of or access to the Apmasphere Platform following the effective date of any changes to this EULA constitutes acceptance of those changes.

Grant of licence

Apmaspheric grants to End User for the Term a non‑exclusive, non‑transferable, non‑sub‑licensable licence to use and access (and permit its Delegates to use and access on its behalf) the Apmasphere Platform and the Apmasphere Platform Content, in accordance with the terms of this EULA and solely for the Permitted Purposes. If End User wishes to use the Apmasphere Platform, Apmasphere Platform Content and/or any Provider Data for any purpose other than a Permitted Purpose, it will seek the prior written consent of Apmaspheric (or, in the case of third party Provider Data, the relevant third party Module and provider). If such consent is granted, End User may be required to enter into a separate agreement.

Term and termination

      1. This EULA commences upon End User's first use of or access to the Apmasphere Platform or Apmasphere Platform Content and shall continue in full force and effect until:
        1. End User terminates End User's access to the Apmasphere Platform by completing the unsubscribe process; or
        2. Apmaspheric terminates End User's access to the Apmasphere Platform in accordance with this clause 5, 

(Term). 

      1. If End User (including through a Delegate) breaches any term of this EULA, Apmaspheric may (without notice to End User):
        1. terminate this EULA or suspend End User's access to the Apmasphere Platform; and
        2. prevent End User's further access to the Apmasphere Platform.
      2. Upon termination, End User shall cease all use of the Apmasphere Platform and Apmasphere Platform Content, and Apmaspheric reserves the right to delete End User's account and all End User Data.
      3. To the full extent permitted by law, Apmaspheric will not be responsible for any loss, cost, damage or liability that may arise as a result of Apmaspheric exercising its rights under this clause 5.

Conditions of access

End User agrees:

      1. to comply with all applicable Laws (including any applicable privacy laws);
      2. not to copy, modify, merge, alter, adapt, translate, de‑compile, disassemble or reverse‑engineer any aspect of the Apmasphere Platform or to otherwise attempt to derive the source code relating to any aspect of the Apmasphere Platform, or to merge any software or any part of any software with any aspect of the Apmasphere Platform unless expressly permitted by this EULA or after obtaining Apmaspheric's prior written consent;
      3. not to interfere in any manner with the Apmasphere Platform or its source code or any work product of Apmaspheric (except as permitted by this EULA);
      4. not in any circumstances to sell or license, offer for sale or license, dispose of, pledge, encumber, underlet, lend or part with possession of its access credentials to the Apmasphere Platform, nor to allow any person to use or have the benefit of the Apmasphere Platform, the Apmasphere Platform Content or any part or parts of the software, other than as permitted by this EULA;
      5. not to remove, modify or obscure any copyright, trade mark, service mark, tagline or other notices that appear during use of the Apmasphere Platform;
      6. not to use any data mining, gathering or extraction tools (excluding tools provided by Apmaspheric or a Module Provider for End User's use); and
      7. that Apmaspheric cannot guarantee and does not promise any specific results from the use of the Apmasphere Platform. 

Access credentials and site access

      1. Apmaspheric will use its reasonable endeavours to implement industry standard safeguards with respect to the Apmasphere Platform, however security is a joint responsibility and End User is solely responsible for maintaining the security of its ICT environment and any access credentials associated with its account and is fully responsible for all activities that occur under its account (whether or not authorised by End User).
      2. End User is not permitted to allow any third party to use its access credentials to log in to the Apmasphere Platform. To avoid any doubt, this does not restrict End User allowing its Delegates to use the Apmasphere Platform on its behalf (such Delegates must use their own personal access credentials). End User must immediately notify Apmaspheric of any unauthorised uses of its account or any other breaches of security. Apmaspheric and its Related Bodies Corporate, contractors, suppliers and licensors will not be liable for any acts and omissions by or on behalf of End User, including any damages of any kind arising from such acts of omissions.

Intellectual property rights

      1. The Apmasphere Platform is intended to facilitate the sharing of information in a number of ways, including as follows:
        1. Apmaspheric makes the Apmasphere Platform (excluding Modules) available to Apmasphere Participants and Module Providers;
        2. Module Providers (which may include Apmaspheric) make Modules available to Apmasphere Participants; and
        3. Apmasphere Participants make End User Data available to Apmaspheric, Module Providers and other Apmasphere Participants.
      2. The ownership of Intellectual Property Rights is as follows:
        1. Apmaspheric owns (or licenses from third parties) all Intellectual Property Rights in the Apmasphere Platform (excluding Modules) and all Apmasphere Platform Content;
        2. the relevant Module Provider owns (or licenses from third parties) all Intellectual Property Rights in each Module;
        3. Module Providers own all Intellectual Property Rights in Provider Data; and
        4. End User owns (or licenses from third parties) all Intellectual Property Rights in End User Data provided by or on behalf of End User.
      3. To the maximum extent permitted by law, including the Australian Consumer Law, End User agrees that:
        1. Apmaspheric makes no warranties or representations (including as to non-infringement) as to any End User Data; and
        2. it will not bring any claims against Apmaspheric in connection with any other End User's End User Data, 

and any Intellectual Property Rights therein. 

      1. End User's access to or use of the Apmasphere Platform or Apmasphere Platform Content does not grant or transfer any rights, title or interest to End User in relation to the Apmasphere Platform or Apmasphere Platform Content. Apmaspheric grants End User a licence to access the Apmasphere Platform and view the Apmasphere Platform Content on the terms of this EULA and, where applicable, as expressly authorised by Apmaspheric.
      2. Any reproduction or redistribution of the Apmasphere Platform or the Apmasphere Platform Content is prohibited and may result in civil and criminal penalties. In addition, End User must not copy the Apmasphere Platform Content to any other server, location or support for publication, reproduction or distribution.
      3. All other use, copying or reproduction of the Apmasphere Platform, the Apmasphere Platform Content or any part of it is prohibited, except to the extent permitted by law.

End User Data

      1. End User Data may be accessed and viewed by: 
        1. Apmaspheric; 
        2. the End User which made it available (and its Delegates); 
        3. where End User uses a Module, the relevant Module Provider (with such access to be governed by separate terms between the Module Provider and End User); and
        4. Apmasphere Participants.
      2. By submitting, posting, uploading or otherwise allowing access to End User Data (or allowing Delegates to do so), End User represents and warrants that End User has rights to and is legally entitled to distribute such content to Apmaspheric and other third parties as contemplated by this EULA.
      3. Apmaspheric does not claim ownership over any End User Data. End User agrees that by using the Module, End User grants Apmaspheric a royalty-free, perpetual, irrevocable, sub-licensable right to create and commercially exploit derivative, aggregated and anonymised works from such End User Data, but only to the extent: 
        1. permitted by law; and
        2. such derivative works do not reveal End User's raw Business Data or any Uploaded Personal Information.
      4. End User warrants that it has all rights necessary to grant the licence set out at sub-clause 9(c) above, including in relation to End User Data generated by its Delegates. 
      5. End User acknowledges that despite Apmaspheric's commercially reasonable efforts to secure and store safely all End User Data on the Apmasphere Platform, Apmaspheric cannot guarantee that third parties will not succeed in penetrating its systems by nefarious actions.
      6. Apmaspheric has the right (but not the obligation) in its sole discretion (and without notice) to refuse or remove or direct the removal of any End User Data that it reasonably considers violates any of the terms of these Module Terms or any applicable law.

Acceptable use

      1. End User must use the Apmasphere Platform for lawful conduct only, and in a manner that is courteous to other Apmasphere Participants at all times.
      2. End User must not access or use the Apmasphere Platform, or post, provide or transmit End User Data in any way that:
        1. violates or infringes the rights of others including, without limitation, Intellectual Property Rights;
        2. is unlawful, offensive, indecent, objectionable, harassing, threatening, abusive, defamatory, fraudulent, tortious, or invasive of another's privacy;
        3. impersonates any person, business or entity, including Apmaspheric and its affiliates, employees and agents;
        4. includes personal or identifying information about another person without that person's consent to the use and handling of that person's information as contemplated by this EULA and as set out in the Apmaspheric privacy policy available at apmasphere.com/privacy and any other policy posted on the Apmasphere Platform;
        5. is false, misleading, or deceptive;
        6. violates this EULA or any policy posted on the Apmasphere Platform;
        7. contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorised use of a computer or computer network;
        8. interferes with the use of the Apmasphere Platform by other Apmasphere Participants or potential Apmasphere Participants;
        9. could damage, disable or impair the servers or networks used by the Apmasphere Platform or Apmasphere Participants; or
        10. advertises products or services.

Privacy

      1. Apmaspheric will handle all Uploaded Personal Information in accordance with the Apmaspheric privacy policy available at apmasphere.com/privacy. 
      2. Where End User makes his or her personal information available to Apmaspheric through use of the Apmasphere Platform, End User consents to the collection, use, storage and disclosure of that information as described in this EULA, the Apmaspheric privacy policy and any other policy posted on the Apmasphere Platform.
      3. For the avoidance of doubt, Apmaspheric will use Uploaded Personal Information solely to the extent required to provide its products and services as described in this EULA.
      4. Apmaspheric will not disclose any Uploaded Personal Information to third parties except to the extent required to provide its products and services as described in this EULA (for example, to service providers who are contracted by Apmaspheric to support its functions). 
      5. Apmaspheric will not use or disclose any Uploaded Personal Information for direct marketing or any other purpose that is not permitted by this EULA.
      6. Where End User is not a User (for example, the End User is an Agency Owner, Network Member, Network Owner or other corporate entity), End User must procure from each of its Delegates the Delegate's consent to the collection, use, storage and disclosure of his or her personal information as described in this EULA, the Apmaspheric privacy policy and any other policy posted on the Apmasphere Platform. 
      7. End User warrants that: 
        1. any Uploaded Personal Information was lawfully collected and made available to Apmaspheric (and other third parties as contemplated by this EULA); and
        2. it has complied and will comply with the Privacy Act (whether or not actually bound by that Act) in relation to that Uploaded Personal Information including by:
          1. obtaining and maintaining any necessary consents from the individuals to whom the Uploaded Personal Information relates; 
          2. providing necessary notifications to the relevant individual that his or her personal information will be disclosed to Apmaspheric; and
          3. directing the relevant individuals to Apmaspheric's privacy policy available at apmasphere.com/privacy. 

Updates and enhancements 

Apmaspheric may (but is not required to):

      1. provide standard or progressive updates, changes or amendments to the Apmasphere Platform as Apmaspheric sees fit to ensure proper operation and interaction of all parts of the Apmasphere Platform and any general enhancements that may be introduced; and
      2. offer new services and / or features and/or Modules for the Apmasphere Platform (which may incur a different set of fees),

which will be subject to the terms of this EULA.

Third party software and content

      1. End User's use of the Apmasphere Platform may or may not require the installation of third party software or products. End User agrees that:
        1. this is entirely End User's responsibility; and
        2. Apmaspheric is not responsible in any way to make recommendations in that regard nor to supply or install such software or products.
      2. Third party content (including Modules and links to third party websites) may be accessible via the Apmasphere Platform. End User acknowledges that Apmaspheric has no control over any such third party content, and is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on such third party applications and content. 

Dispute resolution

      1. Apmaspheric does not control the interactions that may take place between Apmasphere Participants via the Apmasphere Platform.
      2. Apmaspheric does not control Apmasphere Participants and is not liable for their opinions or behaviour, including any information and/or advice and any defamatory statements or offensive conduct.
      3. Apmaspheric reserves the right, but has no obligation to become involved in or monitor disputes between End User and other Apmasphere Participants. 

Warranties and disclaimers 

      1. To the maximum extent permitted by law, including the Australian Consumer Law, the Apmasphere Platform and the Apmasphere Platform Content are made available "as is" and Apmaspheric makes no warranties or representations about the Apmasphere Platform or the Apmasphere Platform Content, including but not limited to warranties or representations that they will be complete, accurate or up‑to‑date, that access will be uninterrupted or error‑free or free from viruses, that data will be accessible or backed‑up, or that the Apmasphere Platform will be secure. All implied terms, conditions, warranties and any other additional obligations are excluded from this EULA, to the maximum extent permitted by law.
      2. Apmaspheric reserves the right to restrict, suspend or terminate without notice End User's or a Delegate's access to the Apmasphere Platform and any Apmasphere Platform Content at any time without notice where Apmaspheric determines, in its sole discretion, that this is necessary or desirable for purposes related to the efficient, proper and lawful operation of the Apmasphere Platform. Apmaspheric will not be responsible for any loss, cost, damage or liability that may arise as a result. 
      3. Apmaspheric cannot and does not guarantee the privacy, security, authenticity or non‑corruption of any information transmitted through, or stored in or via the Apmasphere Platform.
      4. Subject to the terms and conditions of this EULA, Apmaspheric will use commercially reasonable efforts to make the Apmasphere Platform available, subject to the need to conduct scheduled and emergency maintenance from time to time.

Indemnity and liability

      1. End User will defend, indemnify and hold harmless Apmaspheric and its Related Bodies Corporate from and against any and all claims, suits, losses, damages, liabilities, costs and expenses brought by third parties resulting from or relating to:
        1. a breach by End User (including its Delegate) of this EULA or any representation or warranty given to Apmaspheric; or
        2. any claim that the End User Data, as provided by or on behalf of End User, infringes or misappropriates the rights (including Intellectual Property Rights) of any third party.
      2. To the maximum extent permitted by law, including the Australian Consumer Law:
        1. in no event shall Apmaspheric be liable for any direct or indirect loss, damage or expense – irrespective of the manner in which it occurs – which may be suffered due to End User's (including its Delegate's) use of the Apmasphere Platform and/or the Apmasphere Platform Content, or as a result of the inaccessibility of the Apmasphere Platform and/or the fact that certain information or materials contained on it are incorrect, incomplete or not up‑to‑date; and
        2. Apmaspheric's maximum liability arising out of or in connection with this EULA, the Apmasphere Platform and the Apmasphere Platform Content, whether in contract, tort, breach of warranty or otherwise, will not exceed AU$100.

Survival of provisions

On termination or expiry of this EULA, clauses 5, 8, 9, 10, 11, 14, 15, 16 and 21 will continue in full force and effect notwithstanding any such termination or expiry.

Severability

Any provision of this EULA that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this EULA nor affect the validity or enforceability of that provision in any other jurisdiction.

No waiver

A failure to exercise or a delay in exercising any right, power or remedy under this EULA does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

Entire agreement

This EULA contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. Neither party has relied on or is relying on any other Conduct in entering into this EULA and completing the transactions contemplated by it.

Jurisdiction and governing law

This EULA and End User's use of the Apmasphere Platform and Apmasphere Platform Content is governed by the laws of New South Wales, Australia and End User submits to the non‑exclusive jurisdiction of the courts exercising jurisdiction there.