MyDesktop Terms

Unless the context otherwise requires, capitalised terms used in these Terms and Conditions have the meaning set out in the final section of these Terms and Conditions 

  1. Right to Use the Service. Upon acceptance of the Licensee’s Order by Licensor, Licensor grants to Licensee a non-exclusive, non-transferable right to use MyDesktop (including its implementation and configuration), Materials and Documentation solely for Licensee’s and its Affiliate’s internal business operations based in the Territory. Acceptance of an Order takes place when Licensor arranges set-up and access to MyDesktop for Licensee.
  2. Authorised Users. Licensee may permit Authorised Users to use MyDesktop.  Usage is limited to the Usage Limit of Authorised Users set out in the Licensee’s Order.  Access passwords to MyDesktop may not be used by more than one Authorised User, but may be transferred from one Authorised User to another if the original Authorised User is no longer permitted to use MyDesktop.  Licensee has informed, or will inform, Authorised Users of these Terms and Conditions and acknowledges it is responsible for all and any breaches of these Terms and Conditions by Authorised Users.
  3. Usage Limit. Licensee will monitor its use of MyDesktop and report any use in excess of the Usage Limit to Licensor.  Subject to the terms of any relevant Wholesale Agreement, the Licensee shall pay the set-up cost fees, training fees, and licence fees (as set out in the Order), as well as any fees related to use over the Usage Limit. Payment of all fees by Licensee will be made by direct debit.
  4. Security and Privacy. Licensor will use technical and organisation measures to secure personal data processed in MyDesktop in accordance with all applicable privacy laws and its Information Security Policy.
  5. Unauthorised Use. Licensee shall not: (a) copy, modify adapt, rent, lease, sell, distribute, export, re-export, assign, sub-licence, translate, transfer or reprogram MyDesktop or any portion thereof; (b) create derivative works from, reverse engineer, decompile, translate, merge or disassemble the underlying code or configuration of MyDesktop; (c) perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive harassing, tortious, or defamatory, or perform any activity (including the transmission of any content or data) which breaches the rights of any third party in connection with MyDesktop; and/or (d) circumvent or endanger the operation and/or security of MyDesktop to any extent whatsoever.
  6. Suspension or Termination. Licensor may immediately suspend or terminate Licensee’s use of MyDesktop if, in Licensor’s sole discretion, Licensee’s continued use may result in material harm to MyDesktop, its users and/or to the reputation of the Licensor and/or its Affiliates. Licensor may terminate Licensee’s right to use MyDesktop, with notice to the Licensee, where the Wholesale Agreement is terminated for any reason (if applicable), or where the Licensee breaches these Terms and Conditions and fails to remedy the breach within fourteen (14) days of receipt of written notice from the Licensor identifying the breach and setting out the remedy required. If the Licensee’s right to use MyDesktop is terminated by the Licensor for breach by the Licensee any fees already paid are not refundable.
  7. Set up Fees. Unless otherwise provided for in a relevant Wholesale Agreement, Licensee will pay an additional fee for set-up of and access to MyDesktop for Licensee. Such fees are subject to change from time to time by the Licensor in its discretion upon 30 days’ notice to Licensee.
  8. The Licensor will provide the Licensee with reasonable training in relation to the use of MyDesktop upon request and in return for the payment of a fee to the Licensor.
  9. SMS Fees. The Licensee will pay additional fees for all SMS & MMS messages. Such fees are subject to change from time to time by the Licensor in its discretion upon 30 days’ notice to Licensee.
  10. Unpaid Fees. If fees due to the Licensor on behalf of the Licensee under any Order are overdue by thirty (30) days or more then Licensor may limit Licensee’s access to MyDesktop (eg by not allowing new End User Data to be input to MyDesktop) and/or may suspend or terminate Licensee’s access to support.   If fees due to the Licensor on behalf of the Licensee under any Order are overdue by sixty (60) days then Licensor may suspend or terminate Licensee’s access to MyDesktop.
  11. Monitoring of Use. To ensure the Licensee is complying with these Terms and Conditions, Licensor may monitor Licensee’s End User Data and usage of MyDesktop by Licensee and/or Authorised Users.
  12. Third Party Web Services. MyDesktop may include integrations with web services made available by third parties that are accessed through MyDesktop.  These third party web services are not part of MyDesktop and these Terms and Conditions do not apply to them.  Licensor does not accept any responsibility in connection with such third party services (for example, if the Licensee uses these services to bulk upload properties or data).  Third parties may charge a separate fee for these web services and such services are governed by separate arrangements between the Licensee and the relevant third parties.
  13. End User Data. Licensee is responsible for End User Data and entering it into MyDesktop. Licensee grants to Licensor, its Affiliates and contractors a non-exclusive right to process End User Data (including personal data) solely to provide and support and report on MyDesktop.
  14. Modifications to MyDesktop. Licensor may modify and/or update MyDesktop from time to time as the underlying technology evolves and improves.
  15. Internet Costs. The Licensee shall be liable for the cost of any telecommunications and/or internet connection between the Licensee’s network and MyDesktop.
  16. Intellectual Property. Licensee acknowledges that Licensor owns all intellectual property rights in and related to MyDesktop, the Materials, and the Documentation and all related knowledge or processes.  All rights not expressly granted to Licensee are hereby reserved. As between the parties, Licensee retains any intellectual property rights in the End User Data.
  17. Licensor will provide the Licensee with support in relation to MyDesktop in accordance with the SLA during the period in which Licensee has the right to use MyDesktop.
  18. Access to Data by Head Offices. Where a Wholesale Agreement has been entered into between a Head Office and the Licensor and the Wholesale Agreement permits the Head Office to integrate the Licensee’s End User Data into its Data Warehouse, Licensee represents and warrants to Licensor that it permits and authorises MyDesktop to execute such integration on a continuing basis until 14 days after Licensee provides Licensor with written notice requesting Licensor to stop such integration.
  19. Automatic Listing Upload. Unless Licensee opts out of this function, where a free property listing is entered into MyDesktop, that listing will be automatically uploaded onto domain.com.au.
  20. Compliance with Law.  Each party warrants it complies with, and will continue to comply with all applicable laws and regulations that apply to its business and its use of MyDesktop. Without limiting the generality of the foregoing, Licensee represents and warrants to the Licensor as follows:
    1. Licensee has obtained the requisite consents from its customers to facilitate MyDesktop holding and using the End User Data in connection with MyDesktop and, where relevant under a Wholesale Agreement, integrating the End User Data with the Data Warehouse for use by the Head Office; and
    2. Licensee will at all times comply with its obligations under the Privacy Act 1988 (Cth), the Australian Privacy Principles and all other applicable privacy laws in connection with its collection, holding and use of the End User Data.
  21. Australian Consumer Law.  Nothing in these Terms and Conditions excludes, restricts or otherwise modifies the Statutory Guarantees.  If Licensor is in breach of a Statutory Guarantee implied by the Competition and Consumer Act 2010 and/or equivalent applicable legislation, Licensor’s liability to Licensee is limited in the manner set out in clause 21 of these Terms and Conditions to the extent this is permitted by law.
  22. Subject to the Licensor’s obligations under any Statutory Guarantees, the maximum liability of either party to the other party under these Terms and Conditions for any loss or damage however caused is: (a) if applicable, as provided for in a relevant Wholesale Agreement; or (b) if there is no relevant Wholesale Agreement or if there is no limit provided for in the relevant Wholesale Agreement, an amount equivalent to three (3) months of subscription fees paid for MyDesktop by the Licensee, or the applicable pro-rated amount, if the Licensee has used MyDesktop for a period of less than three (3) months.
  23. Exclusion of Liability. Neither party will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of goodwill, corruption of data, loss of business profits and/or for exemplary or punitive damages.   Subject to the Statutory Guarantees, the Licensor does not warrant the availability of MyDesktop and no fees will be refunded to the Licensee in connection with any failure by the Licensor to provide MyDesktop or any negligence of the Licensor.
  24. Amendments to these Terms and Conditions. Licensor shall have the right to amend these Terms and Conditions after giving the Licensee 28 days’ notice provided that if the Licensee does not agree with any such amendments it will have the right to terminate these Terms and Conditions by notice in writing to the Licensor received by the Licensor within the said 28 days’ notice period.
  25. Licensor may subcontract parts of MyDesktop and/or the SLA to third parties. Licensor is responsible for breaches of these Terms and Conditions caused by its subcontractors.
  26. Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by these Terms and Conditions.
  27. Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of these Terms and Conditions. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
  28. Any provision of these Terms and Conditions which is invalid in the applicable jurisdiction must, in relation to that jurisdiction be read down to the minimum extent necessary to achieve its validity, if applicable; and be severed from these Terms and Conditions in any other case, without invalidating or affecting the remaining provisions of these Terms and Conditions or the validity of that provision in any other jurisdiction.
  29. Entire Agreement. The Licensee’s Order together with these Terms and Conditions comprise the entire agreement between the Licensor and the Licensee, subject to the terms of any applicable Wholesale Agreement
  30. Governing Law. These Terms and Conditions and any claims relating to their subject matter will be governed by and construed under the laws of New South Wales, Australia without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in New South Wales, Australia
  31. In these Terms and Conditions, the following terms have the meaning set out below unless the context otherwise requires:
    1. Affiliate of a party means any Related Body Corporate and/or Associate of that party (as those terms are defined in the Corporations Act 2001 (Cth)).
    2. Authorised User means any individual that is an employee or contractor of the Licensee or its Affiliate to whom Licensee gives password rights to use MyDesktop.
    3. Data Warehouse means a cloud-based data warehouse of a Head Office.
    4. Confidential Information with respect to Licensee is the End User Data and Licensee’s marketing and business requirements; and with respect to Licensor includes MyDesktop, Documentation, Materials and any marketing and business information of the Licensor including product offerings, road maps, pricing and availability.
    5. Documentation means any technical and functional documentation developed by Licensor in connection with MyDesktop.
    6. End User Data means any content, materials, data and information that the Licensee and/or Authorised Users enter into MyDesktop.
    7. Head Office means an entity operating in the real estate industry that permits the Licensee to use its brand and logo for the purposes of operating Licensee’s real estate agency business where that entity provides ongoing support to the Licensee (whether under a franchise arrangement or otherwise).
    8. Information Security Policy means the Licensor’s Information Security Policy with respect to MyDesktop (as amended from time to time by Licensor).
    9. Licensee means an individual entity that has applied for and been granted by the Licensor the right to use MyDesktop in accordance with these Terms and Conditions.
    10. Licensor means Commerce Australia Pty Limited (ABN 94 073 927 769).
    11. Materials means any materials provided by Licensor to the Licensee in the course of providing MyDesktop to Licensee, including in the delivery of support or services to the Licensee. Materials do not include the End User Data, Licensee Confidential Information or MyDesktop.
    12. MyDesktop means the hosted, subscription-based cloud-based MyDesktop functionality and service offered by the Licensor which provides, amongst other things, sales management listings and customer relationship data and reporting and which is accessed by Authorised Users via web-based applications, mobile apps and APIs.
    13. Order means the document which details, amongst other things, the fees that the Licensee agrees to pay for access to MyDesktop and which constitutes an application for access to MyDesktop by Licensee on these Terms and Conditions.
    14. LA means the Licensor’s Service Level Arrangement with respect to MyDesktop (as amended from time to time by Licensor).
    15. Statutory Guarantee means a guarantee, warranty, term, condition, right or remedy imposed by the Competition and Consumer Act 2010 (to the extent applicable) relating to the supply of goods and services under these Terms and Conditions.
    16. Territory means Australia.
    17. Usage Limit means the maximum number of Authorised Users permitted under an Order.
    18. Wholesale Agreement means any applicable wholesale agreement entered into between Licensor and a Head Office as referred to in the Order which facilitates access by Licensee to MyDesktop