USER LICENCE AGREEMENT
TABLE OF CONTENTS
Definitions and Interpretation 1
Your Acceptance of This Agreement 3
Licence to Use the Service 3
Your Responsibilities 4
Fees 5
Intellectual property 5
Music Library 6
Termination 7
Exclusion of Warranties and Limitation of Liability 7
General 8
USER LICENCE AGREEMENT
EULOGISE
Last updated December 2018
Welcome to Eulogise. Our purpose is to help the bereaved express the life of the person they’ve lost by helping transform pictures and memories into personalised booklets, slideshows, eulogies and other content. This User Licence Agreement (“ULA”) governs your Use of the service provided by Eulogise at the URL www.eulogise.com.au (“Website”) including all software, applications plugins, mobile applications and other applications and services provided from time to time on, from or through the Website (together, the “Service”).
This ULA, our Privacy Policy and any other rules or guidelines that are posted onto the Website (together, this “Agreement”) is a binding contract between “you”, the user, and WILD PALMS DIGITAL PTY LTD ACN 624 938 094 (“Eulogise”, “we”, “our” and “us”) of 380 Victoria Place, Drummoyne NSW 2047.
You should read this Agreement carefully before you start using the Service.
Definitions and Interpretation
In this Agreement:
Eulogise means Wild Palms Digital Pty Ltd ACN 624 938 094 of 380 Victoria Place, Drummoyne NSW 2047.
Associate in relation to a party, means the employees, officers, directors, contractors and agents of that party.
Business Days means a day other than a Saturday, Sunday or a public holiday in Sydney, Australia.
Content means any Eulogise Content and/or any User Content (as applicable).
Contributors has the meaning given in clause 2.4 (Contributors).
Commencement Date means the date that this Agreement starts.
Connections means all equipment, facilities, devices, internet connections, network connections and telecommunications lines and services installed and used to connect to, access or use the Service (including modems, filters, cabling, telephone and data lines, routers and ethernet LAN connections, and all software used by them).
Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of opportunity or any other special, indirect or consequential loss or damage.
Corporations Act means Corporations Act 2001 (Cth)
Eulogise Content means any information, data or content in any form or medium on or in any part of the Service (including text, software, scripts, graphics, photos, sounds, music, videos, audio-visual combinations, interactive features and other materials from time to time) that is not User Content.
Fee means the amount payable by you to Eulogise in respect of the provision of the Service, as set out on the Website from time to time.
GST means the Goods and Services Tax as defined under the GST Act.
GST Act means A New Tax system (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means (a) a voluntary termination of operations, (b) a general assignment for the benefit of the party’s creditors or (c) any other liquidation, dissolution or winding up of the party, whether voluntary or involuntary
Intellectual Property Rights means patents, rights in inventions, works of authorship, designs, databases, know-how, trade secrets, confidential information, trademarks, business and domain names, logos, get-up and goodwill, copyrights, Moral Rights and any other intellectual property or proprietary rights in any jurisdiction.
Loss means all loss, damage, costs (including all reasonable legal costs on a full indemnity basis), expense or liability of any kind, whether direct or indirect or consequential, present or future, fixed or unascertained or actual or contingent.
Video Memorial means the video memorial created by a User’s Use of the Service.
Memorial Service means a Video Memorial and/or Order of Service Booklet (as applicable).
Moral Rights means the rights defined as “moral right” under the Copyright Act 1968 (Cth) and any other similar right capable of protection under laws of any applicable jurisdiction.
Music Libraries means the compilation of music tracks made available to you on the Service from time to time for Use by you in accordance with this Agreement.
Order of Service Booklet means the order of service booklet created through the Service.
Privacy Policy means Eulogise’s privacy policy from time to time.
Related Body Corporate has the meaning given in the Corporations Act.
Use means access and use.
User means any person that Uses the Service from time to time.
User Content means any information, data or content in any form or medium and includes text, photos, sounds, music and videos uploaded to the Service by you or a Contributor from time to time.
Website means the internet site at the URL eulogise.com.au.
In this Agreement, unless the context requires otherwise: (a) in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period; (b) where an expression is defined anywhere in this Agreement, it has the same meaning throughout; (c) the rule of interpretation which sometimes requires that a document be interpreted to the disadvantage of the party which put the document forward, does not apply; (d) a reference to this Agreement or any other agreement, arrangement or document, includes any variation, novation, supplementation or replacement of them; (e) headings and sub-headings are for convenience of reference only and do not affect interpretation; (f) the phrase include, includes or including, or similar phrase does not limit what else might be included; (g) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and also any subordinate legislation issued under, that legislation or legislative provision; (h) a reference to “law” means all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writs, orders, injunctions, judgements, Australian generally accepted accounting principles and industry-wide non-statutory rules or obligations in force from time to time; (i) a reference to dollars or $ is to an amount in Australian currency; (j) the singular includes the plural and vice versa; (k) a reference to any party to this Agreement or to any other document or arrangement, includes that party’s legal personal representatives, substitutes (including any person taking by novation), successors and permitted assigns; (l) a reference to a person includes a body corporate, partnership, joint venture, incorporated or unincorporated association, authority, State, government, or government or quasi-government body, and vice versa; (m) any schedule, attachment or exhibit, and the description of the parties, all form part of this Agreement; (n) a reference to anything (including any amount) is a reference to the whole or any part of it (except that nothing in this provision excuses a party from performing the whole of an obligation just because they have performed part of the obligation); (o) a reference to a group of persons is a reference to any one or more of them; and (p) “in writing” includes any modes of reproducing words in legible and non-transitory form including by email or other electronic means.
Your Acceptance of This Agreement
Your acceptance of this Agreement. This Agreement is important – please read it carefully. If you do not agree with any of the terms, do not Use the Service and you must leave the Service immediately. Your Use and continuing Use of the Service is an acknowledgement that you have been given a reasonable opportunity to read this Agreement; that you have in fact read this Agreement; that you understand the terms, and that you agree to abide by and be bound by this Agreement.
When this Agreement applies. This Agreement applies to you if you access or otherwise Use the Service.
User account. In order to Use the Service you must have an account with Eulogise. You can create an account online or one of our funeral home partners can create an account for you. When registering for an account, you must use your correct and current name and information. You must not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity or employ misleading email addresses or falsify information in any part of any communication transmitted through the Service. We will handle all personal information we collect in accordance with our Privacy Policy.
You may give access to the Service to individuals (“Contributors”) who can upload User Content to your account. Contributors will be required to read and agree to comply with this Agreement prior to using the Service.
Your age. You must be at least eighteen (18) years’ of age to Use the Service, or you must have parental or guardian consent to do so.
Changes to this Agreement. We may, without notice, update or otherwise change this Agreement periodically, and any such changes will be posted to the Website. Your continuing Use of the Service constitutes your agreement to be bound by any such changes. We are not obliged to notify you of any changes but we will endeavour to alert you to any significant changes.
Questions about this Agreement. Should you have any questions in relation to this Agreement, you should contact us at info@eulogise.com.au before you Use the Service.
Licence to Use the Service
Our licence to you. In consideration of your agreement to comply with this Agreement, we hereby grant you a non-exclusive, non-transferable licence to Use the Service and the Eulogise Content, unless we suspend or terminate your account or the Service in accordance with Agreement.
Your licence to Eulogise. In consideration of our agreement to provide the Service in accordance with this Agreement, you hereby grant Eulogise a non-exclusive, non-transferable, royalty-free licence to use the User Content, for the purposes of providing the Service to you.
Nature of the Service. You acknowledge and agree that: (a) we may, at any time in our sole discretion and without prior notice, alter, amend, interrupt, reschedule, modify or cease the operation of all or any part of the Service; and (b) the Service may not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes).
Number of Memorial Services. Each User will be entitled to create up to five (5) different Memorial Services.
Variation to Memorial Service. Subject to clause 6 (Removal of Content), each User will be entitled to an unlimited number of changes to the Memorial Service.
Removal of Content. We reserve the right to remove any and all Content, including any Memorial Service, from your account if you have not accessed your account for ninety (90) days or more. You should ensure that you have made back-up copies of the Content.
Your Responsibilities
Your password and login. You are responsible for maintaining the confidentiality of your password and login and you must not share your password or login with any other party. You are responsible for all activities that occur under your password and login. You must not use or attempt to use another party’s password or login to access any part of the Service. You must immediately notify us at info@eulogise.com.au of any unauthorised use of your password or login or any other breach or suspected breach of security in respect of the Service
What you must not do. In using the Service, you must not:
reproduce, make available online or transmit (electronically or otherwise), publish, adapt, create derivative works from, distribute or redistribute, transfer, broadcast, display, sell, license, perform, link, display or exploit in any other way and in any medium any part of the Service except through the functionality offered by the Service. Once you have paid for a Memorial Service, you can use it in any way you wish except if you have used music from the Music Libraries, in which case the use of the Memorial Service is subject to clause 7 (Music Library).
alter or modify any part of the Service;
breach any laws, or use the Service for any purpose that is unlawful or in breach of this Agreement;
attempt to “hack”, decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense any software deployed in connection with the Service. This includes “phishing”, “mining”, accessing “hidden” URLs, attempting to trigger remote code for the purpose of accessing data or material you would not otherwise have access to;
knowingly transmit any virus, corrupt files or any other software or function that may damage the operation of the Service or other disabling feature to the Service, or is designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of any part of the Service;
use or launch any automated system, including “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or
circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content.
Take your own precautions. You must take your own precautions to ensure that your process for accessing the Service does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system.
You are responsible for costs. You are responsible for all costs, fees and expenses incurred directly or indirectly from accessing or otherwise using the Service. This may include internet connection and usage fees and mobile telephone connection and usage fees.
User Content must not infringe third party rights. Notwithstanding clause 3 (Your responsibilities regarding intellectual property), you must ensure that you are entitled to use and upload the User Content to the Service and that the User Content that you upload to the Service does not infringe any third party Intellectual Property Rights.
Fees
Use of the Service is free. If you wish to export or print a Memorial Service, then a Fee will be payable.
Once a Fee is paid, it is not refundable.
Fees exclude GST and sales tax. Unless specified otherwise, the Fee does not include GST. GST will be added to the Fee.
Intellectual property
Intellectual property owned by Eulogise. You acknowledge that (a) the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including copyright, and (b) Eulogise and/or third parties own all right, title and interest in and to the Service, Music Libraries and software provided through or in conjunction with the Service, including all Intellectual Property Rights contained in them.
Intellectual property owned by you. As between you and us, you or a Contributor owns all Intellectual Property Rights in any User Content (e.g. photos, sounds, music, text).
Your responsibilities regarding intellectual property. You agree that you will not, and will not allow any third party to, (i) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality contained in the Service, (ii) use the Service to access, copy, upload, transfer, transcode or retransmit Content in violation of any law or third party rights, or (iii) remove, obscure, or alter Eulogise’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service. Any reproduction or redistribution of any part of the Service is prohibited and may result in civil and criminal penalties. In addition, you must not copy the Eulogise Content to any other server or location.
Possible Infringement.You must:
notify Eulogise immediately upon becoming aware of any direct or indirect infringement of any of Eulogise’s Intellectual Property Rights or claims by a third party that use of any of the intellectual property contained within the Service infringes the rights of a third party, and
do all things reasonably necessary, at Eulogise’s cost, to assist Eulogise to prevent any prohibited or otherwise unauthorised access to or use of Eulogise’s Intellectual Property
Music Library
Licence to use Music Libraries. Eulogise grants you a licence to use the Music Libraries, subject to the following restrictions:
you must use the Music Libraries only in relation to a Video Memorial which is:
created within Australia; and
released for performance in public and/or communication to the public (including broadcast) only within Australia.
your Use of the Music Libraries:
must be incidental to a Video Memorial; and
is non-exclusive, non-transferable and restricted to Australia;
subject to clause 1(a) you must not, without Eulogise’s prior written consent:
sell, licence, lease, rent, distribute, assign or in any way use or transfer any reproduction of the Music Libraries to the general public or to any other person;
reproduce the Music Libraries by itself or in whole or in part in any medium including, but not limited to, tape, disc, hard disk, computer system, or other electronic recording or transmission device;
provide access to, sell, licence, lease, rent, distribute, assign or in any way use or transfer the Music Libraries by itself or in whole or in part to any other person by any means;
add any lyrics to the Music Libraries;
release a Video Memorial containing the Memorial for performance in public and/or communication to the public except within Australia.
Licence is for the purpose of a Video Memorial. Nothing in clause 1 (Licence to use Music Libraries) prohibits you from using the Music Libraries for the purposes of a Video Memorial created in accordance with this Agreement.
Licence limited to use under this Agreement. Clauses 1 (Licence to use Music Libraries) and 7.2 (Licence is for the purpose of a Video Memorial) only grant to you the right to Use the Music Libraries as described in this Agreement. No other rights of any kind whatsoever in or relating to the Music Libraries are granted or otherwise deemed to be granted to you.
Termination
Termination with notice. Either party may terminate this Agreement any time by giving the other party 7 days’ written notice.
Termination without notice. Either party may, by providing written notice of its intention to do so, terminate this Agreement with immediate effect if the other party:
Breach of Agreement. Or its Associates commits a serious or persistent breach of any term of this Agreement;
Detrimental acts. Or its Associates commits any act or series of acts materially detrimental to the interests of the other party including conduct which may injure the reputation of the terminating party’s business;
Cessation of business. Ceases to carry on its business in the usual manner; or
Insolvency Event. Suffers an Insolvency Event.
What happens on termination. Upon termination of this Agreement you must: immediately stop Using the Service.
No effect on other duties. Except as otherwise provided herein, termination of this Agreement for any reason shall not relieve or discharge either party from any duty, obligation or liability hereunder which was accrued as of the date of such termination.
Exclusion of Warranties and Limitation of Liability
No liability. To the full extent permitted by law, Eulogise, its related bodies corporate and its officers, employees and agents expressly disclaim any and all liability in connection with: (a) personal injury or property damage, of any nature whatsoever; (b) any unauthorised access to or use of our servers and/or any personal information stored therein; (c) any alteration, amendment, interruption, rescheduling, modification or cessation of all or any part of the Service; (d) all Content and any other information contained in any part of the Service and the removal or suspension of any Content or any other information; (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Service; (f) any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted, or otherwise made available via the Service; and (g) any direct, indirect, incidental or punitive damages, including loss of profits, goodwill or intangible losses, loss of data, interruption of business or damage (including consequential, special or incidental damage), in each case, arising from access to or use of any part of the Service whether or not caused by any negligent act or omission or resulting from any delay in removing or failure to remove Content from the Service after receiving a request for removal even if we knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute, in each case, arising from access to or use of any part of the Service whether or not caused by any negligent act or omission or resulting from any delay in removing or failure to remove Content from the Service after receiving a request for removal even if we knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute.
No representations or warranties. To the full extent permitted by law, Eulogise its officers, employees and agents exclude all representations and warranties (in each case, whether express or implied) in respect of the completeness, accuracy, reliability, suitability or availability with respect to the Service, the Content, the content of any sites linked to any part of the Service, or the information contained on any part of the Service for any purpose. Any reliance you place on any such content or information is strictly at your own risk.
Indemnity. You indemnify and hold us harmless in respect of any and all claims, loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of or in any way connected to any: (a) act or thing done by us in good faith and purportedly pursuant to a right granted to us under this Agreement; (b) breach by you of any provision of this Agreement; (c) any willful, unlawful or negligent act or omission by you; (d) your Use of the Service; (e) any claims made by a third party in respect of a breach of the Intellectual Property Right including in relation to any User Content uploaded by you; or (f) your reliance on or Use of any Content.
Agreement subject to law. This Agreement is to be read subject to any law which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If any law prohibits the exclusion of such warranties, conditions or obligations, Eulogise limits its liability to the extent permitted by law, to the re-supply of the Service.
No limitation on your statutory rights. We make no express warranties or representations other than set out in this clause 9 (Exclusion of Warranties and Limitation of Liability). Nothing in this Agreement excludes, restricts or modifies any terms, conditions or warranties that are imposed or implied by any statute, including the Competition and Consumer Act 2010 (Cth). Limitations and exclusions are made only to the extent that we may legally do so.
Consumer guarantees. You may have the benefit of consumer guarantees under the ACL, and in such cases clauses (a) through to (c) following apply: (a) our goods come with guarantees that cannot be excluded under the ACL; (b) you are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure; and (c) the benefits of this warranty are in addition to any rights and remedies imposed by Australian State and Federal legislation that cannot be excluded and where this clause is inconsistent with any other provision of this Agreement, this clause will prevail. Our liability to you is limited to the options set out in this clause 9.
General
No assignment by you. You must not assign, sublicense or otherwise deal in any other way with any rights or obligations under this Agreement whether in whole or in part – except as permitted under this Agreement. Any unauthorised assignment, sublicense or other dealing shall be null and void.
Eulogise may assign. Eulogise may assign, sublicense and otherwise deal with any rights and obligations under this Agreement without restriction.
No Waiver. If we do not act in relation to a breach by you of this Agreement, this does not waive our right to act with respect to that or subsequent or similar breaches.
Entire agreement. This Agreement and any other legal notices published by Eulogise on the Service from time to time shall constitute the entire agreement between you and Eulogise concerning the Service.
Disputes. Prior to resorting to any external dispute resolution process, you and Eulogise will use reasonable endeavours to use mediation and negotiation to resolve any dispute arising out of or relating to this Agreement.
Force majeure. Eulogise will not be liable to you or any other party for any failure to perform its obligations under this Agreement where such failure or delay is caused by events beyond its reasonable control, including industrial disputes, strikes, lockouts, acts of god, acts or threats of terrorism or war, interruption to telecommunications services and failures or delays caused or contributed to by you.
Clauses 6 (Intellectual Property), 9 (Exclusion of Warranties and Limitation of Liability), together with any other clauses which contemplate that a party has any rights or obligations after this Agreement is terminated, survive the termination of this Agreement.
If any provision of this Agreement is held by a competent authority to be invalid or unenforceable or otherwise becomes illegal, in whole or in part, it is to be read down or severed to the extent necessary and the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected.
Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of New South Wales, Australia. Any dispute arising in respect of this Agreement shall be subject to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal therefrom.