b. The Company’s services comprise a mobile application accessible from the Apple AppStore, Google PlayStore, or any other native or web-based mobile application made available from time-to-time and/or from the URL www.dreemar.com (or any other domain used by the Company from time-to-time) (“Dreemar App”).
c. You agree that your use of the Dreemar App is subject to these terms.
d. Receipt of any of the Company’s services under these Terms, including for the avoidance of doubt, downloading the Dreemar App, or any other agreement between you and the Company will constitute evidence that you have read, understood and agreed to be bound by these Terms.
e. The Company reserves the right to amend, vary, modify and/or replace these Terms or any part thereof, at any time, and from time-to-time, and such amendment, variation, modification and/or replacement shall be effective immediately upon posting to the Company’s website. Your continued use of the Dreemar App shall be your acceptance of any amendments to these Terms.
Users below the age of thirteen (13) years of age must not use the Dreemar App without parental or guardian consent. If you are under the age of thirteen (13) years of age at the time of downloading the Dreemar App, you warrant through your continued use of the Dreemar App that you have obtained your parent’s or legal guardian’s consent to using the Dreemar App.
3. Grant of License
The Company grants you a revocable, non-exclusive, non-transferable, limited license to download, install and use the Application solely for your personal use strictly in accordance with the terms of this EULA.
4. Using the Dreemar App
a. In order to view and interact with digital media via the Dreemar App, you must provide the Dreemar App with contextual data that will trigger the deployment of the digital media content that can be viewed or interacted with as an augmented reality element through the Dreemar App (“Trigger”). These Triggers may include two-dimensional images that are used to project content onto the Dreemar App or geolocation data (“Markers”).
b. The most common way that you may interact with digital media content through the Dreemar App is by aiming the camera of your mobile device at a Marker.
c. The Dreemar App may require permissions to use various services and features of your mobile device to function correctly, including but not limited to:
i. Its camera;
ii. Its microphone;
iii. Its speaker; and/or
iv. GPS data.
d. Failure to grant the Dreemar App permission to use the services required for it to function correctly may result in you not being able to use the Dreemar App correctly.
e. The Company may limit or restrict access to the Dreemar App from time-to-time in its discretion with or without notice to you.
f. You agree to use the Dreemar App solely for the purposes as permitted under these Terms and any applicable law or regulations.
g. You agree not to, and you will not permit others to license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Dreemar App.
h. You agree that you will not use the Dreemar App to:
i. Plan or engage in any conduct that is potentially fraudulent, illegal, threatening, abusive or is deemed unreasonable by the Company in its discretion;
ii. Engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or non-disclosure agreement or otherwise;
iii. Use or commercialise any content from the Dreemar App except as permitted by these Terms, by law and with the prior written consent of the Company;
iv. Transmit any unsolicited advertising, promotional material or other forms of solicitation in connection with your use of the Dreemar App without the prior written consent of the Company;
v. Access (or attempt to access) any part of the Dreemar App by any means other than through the interface provided by the Company;
vi. Engage in any activity which disrupts or interferes with the Dreemar App or the servers and networks that host the Dreemar App;
vii. Interfere with or disrupt the Dreemar App (including accessing the Dreemar App through any automated means, like scripts or web crawlers), or any servers or networks connected to Dreemar App, or breach any policies, requirements or regulations of networks connected to the Dreemar App (including gaining unauthorised access to, use or monitoring of data or traffic); or
viii. Manipulate the Dreemar App by using a script or other automated process.
i. You acknowledge that you must exercise caution and maintain an awareness of your surroundings when using the Dreemar App, as hazards may exist in your immediate environment that may not be detectable via the Dreemar App.
a. You must possess a compatible device and have internet access in order to use the Dreemar App.
b. The Company does not guarantee that the Dreemar App will function on any particular device or in any particular location
c. The Dreemar App may also be subject to malfunctions and delays inherent in the use of wi-fi, mobile broadand networks and any other form of electronic telecommunication.
d. The Company accepts no responsibility if you cannot use the Dreemar App due to:
i. Environmental conditions.
ii. Your failure to provide the Dreemar App with access to the various services and features of your mobile device required for the Dreemar App to operate correctly.
iii. Your incorrect operation; or
iv. Lack of access to a Trigger, Marker or any other Content required for the Dreemar App to function.
e. For the avoidance of doubt, you acknowledge that the Dreemar App will only allow you to access content and augmented reality digital elements when the Dreemar App is:
i. Correctly operated by you;
ii. Has access to all necessary permissions of your mobile device; and/or
iii. Has access to the correct trigger/marker or link.
6. Limitations of Use
a. You understand and acknowledge that the Dreemar App is made on an “as is” and “as available” basis. While the Company will use reasonable endeavours to provide the App to you, you acknowledge that it may not be continuous or fault-free and may not be available at all times.
b. Events which are outside of the Company’s reasonable control may also affect the Dreemar App.
c. The Dreemar App may contain bugs, errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including without limitation, servers, computers, tablets and smart phones) connected to your device.
d. You assume all risks and costs associated with your use of the Dreemar App and any internet access fees, including all data and roaming charges. In addition, the Company is not obliged to, and may not provide you with any maintenance, technical or other support for the Dreemar App.
e. You agree that the Company reserves the right to modify, suspend or stop the Dreemar App (or any part of the Dreemar App), either temporarily or permanently, at any time or from time-to-time, with or without prior notice to you. You agree that the Company shall not be liable to you or any third party for any modification, suspension or cessation of the Dreemar App, whether caused by the Company or any other third party. You acknowledge that the Company has no express or implied obligation to provide, or continue to provide, the Dreemar App, or any part of the Dreemar App, to you now or in the future and, in addition, the Company may at any time, upon prior notice as required by applicable law, institute reasonable charges and/or fees for the Dreemar App.
f. You acknowledge that:
i. Any third party who provides content through the Dreemar App may modify, suspend or stop any Content provided on the Dreemar App or restrict your access to Content provided on the Dreemar App at any time or from time-to-time; and
ii. That the Company is not responsible for any such modification, suspension or cessation of Content provided
You understand and acknowledge that your use of the Dreemar App and any of the information, materials, products or Content provided via the Dreemar App is entirely at your own risk, and that, by using the Dreemar App, you may be exposed to Content that may be offensive, indecent or objectionable.
8. Third Parties
a. In these Terms, “Content” means any information that may be generated, encountered, cached, downloaded or streamed through use of the Dreemar App, including any digital content, video, 3d-models, animations, photographs, images, sounds, comments, correspondence, messages and other like materials.
b. You acknowledge that the Dreemar App is dependent on third-party services, including but not limited to:
i. Banks, credit card providers and merchant gateway providers;
ii. Telecommunication services;
iii. Hosting services;
iv. Email services;
v. Content providers; and
vi. Analytics services.
c. You understand that certain components or features of the Dreemar App may include services, products and/or Content from third parties (“Third-Party Products”). You acknowledge and agree that the Company:
i. Is not responsible for the availability of such Third-Party Products;
ii. Does not endorse or warrant the accuracy of any such Third-Party Products; and
iii. Shall in no way be liable for any loss or damage you incur or suffer, or allege to have incurred or suffered, either directly or indirectly, as a result of your use and/or reliance upon any such Third-Party Products.
d. Content provided through Dreemar App, including without limitation Triggers and Markers, is the sole responsibility of the person or entity that provided the content for the purposes of the Dreemar App. You acknowledge and agree that, to the extent permitted by law, the Company is not liable for any Content, including but not limited to any errors or omissions in any such Content, or for any loss or damage suffered or incurred by you as a result of your use of any Content accessed via the Dreemar App.
e. If you upload or provide any Content to the Dreemar App in the course of accessing or using the Dreemar App, you agree that such Content will be available to the Company to use (or remove or alter) in any manner it thinks fit, subject to the applicable provisions of any relevant legislation including, without limitation, privacy legislation.
f. The Dreemar App and any services or Content provided through the Dreemar App may contain links to other websites or apps. Those links are provided for convenience only and may not remain current or be maintained. The Company is not responsible for the Content or privacy practices associated with third-party service providers, websites or apps.
g. Triggers may be provided to you by third parties. These third parties may impose additional rules on your use of the Triggers, Markers and/or other Content provided by them. You acknowledge and agree that you will comply with any additional rules imposed by a third-party and that you understand that the Company is not responsible for these rules.
h. The Company shall not be responsible for any Trigger, Marker or other Content made available to you by a third party.
b. By using the Dreemar App:
10. Location Data
The Company relies on location information in order to provide the Dreemar App with essential location specific Content. By using the Dreemar App you agree that, where available, the Company may transmit, collect, maintain, process and use your location data, and share your location data with third parties in order to provide you with the Dreemar App experience. The availability and accuracy of location information is subject to limitations arising due to the availability of signals, the particular device used, location and geography. GPS signals may also be blocked in certain areas. The Company assumes no responsibility for provide Content based on location data interruption, network or other electronic communication issues arising.
11. Intellectual Property
a. You acknowledge and agree that the Company and/or its licensors own all legal right, title and interest in the Dreemar App, including any and all intellectual property rights that exists therein, whether registered or not, and wherever in the world they may exist. You further agree that the Dreemar App contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
b. You understand that the Company has granted you a limited, non-exclusive, non-transferable, revocable license, solely for your personal use of the Dreemar App to access and use:
i. The Dreemar App solely on your personal device; and
ii. Any Content, information and related materials that may be made available through the Dreemar App.
c. The Company may use software and other proprietary systems and intellectual property for which the Company has appropriate authority to use, and you agree that such software, proprietary systems and intellectual property is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. You warrant that you will not infringe on any third-party’s intellectual property rights through your use of the Dreemar App.
d. You agree that you do not have the right to assign, transfer or sub-license any rights given to you pursuant to these Terms.
e. You further agree that you must not (and must not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, grant a security interest in or otherwise transfer any right in the Dreemar App.
f. All intellectual property rights in the Dreemar App and any Content provided by the Company are the property of the Company. All intellectual property rights that subsist in the Dreemar App or any Content available on the Dreemar App that are provided by a licensor are the property of, and are reserved to, third party licensors.
g. Any trademarks, intellectual property or the like used on the Dreemar App which belong to a third party remain the property of that party.
12. Disclaimer and Limitation of Liability
a. To the extent permitted by law, you understand and agree that the Company will not be liable for:
i. Any incidental, consequential or indirect damages, personal injury, death, damage to property, or loss arising out of these Terms, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the liable party knew or should have known of the possibility of such damage, loss, personal injury or death, or business interruption of any type;
ii. Any disruptions to the Dreemar App and that the Company does not guarantee or warrant that the Dreemar App will run uninterrupted, at good speed, be secure or without errors from time-to-time; and
iii. Any corruption or damage to your computer system, tablet, mobile phone, mobile handset or other device that occur in connection with your use of the Dreemar App. You understand that it is your sole responsibility to ensure that any links or the like which you select to use from the Dreemar App are free from viruses or any other items which may interfere with, corrupt or damage or affect the operation of your computer system, tablet, mobile or other device.
b. To the maximum extent permitted by law:
i. All conditions, warranties and other provisions which might otherwise have been implied into these Terms are expressly excluded;
ii. The Company’s liabilities for breach of any implied warranty or condition that cannot be excluded is restricted to the financial amount actually paid by Licensee to Dreemar Solutions Pty Ltd. for the Application; and
iii. You will at all times indemnify, and keep indemnified, the Company, its directors, officers, employees, agents and related companies and bodies corporate from and against any loss (including legal costs on a full-indemnity basis) or any liability incurred or suffered by you or by the Company arising from any claim, demand, suit, action or proceeding by any person against yourself and/or the Company where such liability arose out of, in connection with and/or through your use of the Dreemar App, and/or your conduct or breach of these Terms.
a. You may stop using the Dreemar App at any time.
b. The Company may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of your access to the Dreemar App at its sole discretion. Cause for such termination may include, but not limited to:
i. Violation of these Terms, or any other policies or guidelines that are referenced in these Terms and/or posted by the Company on its website or the Dreemar App;
ii. Discontinuance or material modification to the Dreemar App or any part of the Dreemar App;
iii. A request and/or order from law enforcement, a judicial body or other government agency;
iv. Where provisions or the Dreemar App to you is or may become unlawful or otherwise unauthorised;
v. Unexpected technical or security issues or problems; or
vi. Your participation in fraudulent, illegal or offensive activities.
c. Any termination or suspension by the Company will be made in its sole discretion, and the Company will not be responsible to you or any third party for any loss or damage that may result or arise out of such termination or suspension of your access to the Dreemar App.
14. Entire Agreement
These Terms constitute the full terms and conditions agreed to between you and the Company and supersede any prior arrangements. You agree and acknowledge that in accepting these Terms you have not done so in reliance upon any oral or written representation made by the Company with the exception of those contained or referenced in these Terms.
Nothing in these Terms creates a partnership, employment or agency relationship between you and the Company.
These Terms and any rights, obligations and licenses contained hereunder, may not be transferred, assigned or novated by you, but may be transferred, assigned or novated by the Company without consent.
17. Electronic Communication
The Company will send you notices and other correspondence in accordance with the contact details that you provide to the Company. It is your responsibility to update your contact details as and when they change.
No clause of these Terms will be deemed to have been waived and no breach excused unless such waiver or consent is provided in writing. Any failure or delay by the Company to exercise a power or right under these Terms does not operate as a waiver of that power or right, and the exercise of a power or right by the Company does not preclude the Company’s future ability to exercise that or any other power or right under these Terms.
19. Governing Law
These Terms are governed by and must be construed in accordance with the laws of Victoria, Australia. Each party hereby submits to the non-exclusive jurisdiction of the courts of that state in respect of all matters or things arising in relation to these Terms.
20. Force Majeure
You agree that the Company will not be held liable for any delay in fulfilling its obligations under these Terms if such a delay is caused by an act of God, act of terrorism, revolution, civil unrest, industrial or legal action, fire, flood, storm, war, disaster, plague or epidemic, delay in transportation, internet or wireless connectivity, or telecommunication availability, delay by any third party, or any other cause outside of the Company’s control.
If any provision of these Terms offends any law applicable to it, as a consequence, illegal, invalid or unenforceable then:
a. Where the offending provision can be read down so as to give it a valid and enforceable operation of a potential nature, it must be read down to the extent necessary to achieve the result; and
b. In any other case, the offending provision must be severed from these Terms in which event the remaining provisions of the Terms operate as if the severed provision had not been included.