These Terms of Use operate as an agreement between the Department of Creative Industries, Tourism, Hospitality and Sport (‘DCITHS’) and each User of the Neon Marketplace platform (the Platform). Each User must accept the following terms to gain access to the Platform.
1. Acceptance of Terms of Use
1.1 These Terms of Use and our Privacy Policy (available at: https://www.nsw.gov.au/departments-and-agencies/dciths/policies-plans-and-procedures-of-creative-industries-tourism-hospitality-and-sport/privacy) is between you (“you”, “your”) and the Department of Creative Industries, Tourism, Hospitality and Sport (ABN 51 766 912 245) “DCITHS”, “we”, “us” or “our”), collectively referred to as "the “parties” and each a “party”.
1.2 If you are agreeing to the Terms of Use not as an individual but on behalf of your company, then “you” or “your” means your company, and you are binding your company to the Terms of Use and representing that you have authority to bind your company to the Terms of Use.
1.3 We provide the Platform for Users to view, create and manage listings for business districts (Districts) and individual businesses. The access and use of the Platform is offered to you subject to the Terms of Use.
1.4 The Terms of Use constitute a binding legal agreement between you and us, and your continued use of the Platform constitutes your acceptance and acknowledgement of the Terms of Use, our Privacy Policy, and any other policy displayed on the DCITHS website (at https://www.nsw.gov.au/departments-and-agencies/dciths) and the Platform, all of which constitute a part of the Terms of Use. If you do not agree to the Terms of Use, you must not use the Platform.
1.5 We may amend or modify the Platform, the Terms of Use and/or the Privacy Policy at our sole discretion and at any time. Any amendments are effective when they are published on the Platform or DCITHS website. Your continued use of the Platform indicates your continued acceptance of the Terms of Use as modified.
1.6 The Terms of Use will prevail over any other terms or agreement between you and us.
2. Preconditions to use
2.1 Access to and use of this Platform is subject to you being at least 18 years old and having the legal capacity to enter into binding contracts. Accordingly, by using the Platform you warrant the above to us.
2.2 If you are 13 or older but under the age of 18, you represent that you have reviewed this Agreement with your parent or legal guardian to make sure that you and your parent or legal guardian understand this Agreement. If you are a parent or guardian permitting a person under the age of 18 (a Minor) to create an account, you agree to:
exercise supervision over the Minor's use of the Platform;
assume all risks associated with the Minor's use of the Platform and their Account, including the transmission of content or information to and from third parties via the Internet;
ensure that the content and information that the Minor may encounter on the Platform are suitable for the Minor;
assume liabilities resulting from the Minor's use of the Platform and their account;
ensure the accuracy and truthfulness of all information submitted by the Minor; and
provide the consents contained in this Agreement on behalf of the Minor.
2.3 If the above conditions are not satisfied, please cease using the Platform immediately.
3. Registration, Membership and Communications
3.1 You may be required to register as an Administrator (Admin) or District Coordinator to access certain features of the Platform. If you choose not to register as an Admin or District Coordinator, you may still access certain features of the Platform as a User. Any Admin or District Coordinator using the Platform is referred to in these Terms of Use as a User.
3.2 When you register and activate your User account (the Account), you will provide us with personal information such as your name and email address and other personal details. You must ensure that this information is accurate and current. We will handle all personal information we collect in accordance with our Privacy Policy.
3.3 You will create a username (being your chosen email address) and password. You are responsible for keeping this username and password secure and are responsible for all use and activity carried out under this username. You must not share your Account credentials with any third party. We do not authorise anyone to use the service on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under your Account.
3.4 You must not impersonate some other individual, business or company. In case you try to present yourself as another individual or company, your Account may be suspended and/or terminated.
3.5 You acknowledge that there may be different types or classes of registration, which may provide the relevant User different privileges or features which may not be available to other Users.
3.6 You agree to receive email communications from us. The purpose of such communication may be, but is not limited to, service updates, marketing communications and other notifications relating to the Platform or your Account.
3.7 You acknowledge that you can manage your notification settings via your Account or opt-out of receiving marketing materials from us by using the opt-out facilities provided (e.g. an unsubscribe link) or contacting us at neonmarketplace@24houreconomy.nsw.gov.au
3.8 At our discretion, we may at any time refuse, review and/or cancel your registration, and remove you from the Platform if we identify that your registration does not align with the purposes and vision of the Platform, such as promoting and enhancing District collaborations, activations and initiatives in local business communities across NSW.
4. Uploaded Content
4.1 In relation to any content, text, files, data, documents, communications, video, images, code, media or other materials of any type that you upload, submit or otherwise transmit to or through the Platform (Uploaded Content), you:
agree and accept that all Uploaded Content are your responsibility and, where relevant, you will give due image credits and note sources and dates for any uploaded statistics;
represent and warrant to us that you have all right, title, interest and authority in the Uploaded Content, or a valid licence to the Uploaded Content;
represent and warrant to us that you have the permission to use the name and likeness of each person whose image appears in any Uploaded Content in the manner contemplated by these Terms of Use;
represent and warrant to us that the use or exploitation of Uploaded Content will not infringe the rights of any third party (including, but are not limited to, intellectual property rights and privacy rights); and
agree and undertake to pay all amounts which become owing to any person (whether by way of royalty or otherwise) as a result of or in connection with your submission of the Uploaded Content to or via the Platform.
4.2 While you retain ownership of all Uploaded Content, you give us a non-exclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify, and otherwise use the Uploaded Content in connection with the operation or management of the Platform. This includes, without limitation:
the right to make Uploaded Content available to others, including any third party partners and other third-parties;
the right to make Uploaded Content available to third-party suppliers, service providers and integrations which we use in order to operate the Platform, our business or to provide services to you;
the right to refuse proposed submission of Uploaded Content to and to remove any Uploaded Content from the Platform;
to comply with any applicable laws or legal obligations;
to enforce these Terms of Use; or
to respond to claims that any of Your Content violates the rights of third parties.
4.3 Please be aware that certain Uploaded Content and other information you upload into the Platform (including personal information) may be accessible to the public, including through search engine searches. You are advised that you should not upload any information to the Platform that you do not wish to be accessible to the public.
4.4 It is your responsibility to back up any Uploaded Content to your own systems. We do not guarantee that the Platform or the Uploaded Content will always be available at all times.
4.5 We reserve the right to refuse any submission of Uploaded Content or to remove any Uploaded Content from your pages at any time if it is deemed unsuitable for the Platform's intended purpose.
5. Your conduct
5.1 In using the Platform, you must:
always act courteously and politely with us and any User;
strictly comply with any policy or guidelines displayed on the Platform;
obey all laws whatsoever (including international law) which may apply in respect of your use of the Platform;
not take any action that is likely to impose upon the Platform (or our servers, or the servers of our or third-party suppliers) a disproportionately large load;
not interfere with the proper working of the Platform or any activities conducted via the Platform, including by using any automated or manual software or process to "crawl", "spider" or engage in similar conduct in relation to the Platform;
not copy, scrape or use any Uploaded Content in connection with a competitive service;
except to the extent the Copyright Act 1968 (Cth) allows you to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Platform;
not to do anything or add any Uploaded Content:
that may result in you, us or any other User breaching any law, regulation, rule, code or other legal obligation;
that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, profane, in breach of confidence, in breach of privacy or harassing;
that would bring us or the Platform into disrepute;
that you know (or ought reasonably to suspect) is false, misleading, untruthful or inaccurate; or
that contains or constitutes unsolicited or unauthorised advertising (including junk mail or spam),
and we reserve the right to restrict, suspend, or terminate your Account and registration as a User of the Platform if you breach the above conduct rules or in any other way misuse the services provided on the Platform.
5.2 You acknowledge that we have absolute discretion to limit how you interact on the Platform.
5.3 You agree not to use the Platform to collect, manage or process Sensitive Information (as defined below). We will not have any liability that may result from your use of the Platform to collect or manage sensitive information.
5.4 In this clause:
"Sensitive Information" means:
credit or debit card numbers; personal financial account information; Tax File or Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other financial or health information, including any information subject to other regulations, laws or industry standards designed to protect similar information;
any information defined under EU data protection laws as ‘Sensitive Personal Data’; and;
any commercially sensitive information including but not limited to financials and intellectual property including patents or trade secrets.
6. Intellectual Property Rights
6.1 Except as otherwise stated below, you agree that we are the sole owners or licensees of all intellectual property rights whatsoever related to the Platform (including all features of the Platform, code and design elements), and nothing in the Terms of Use constitutes a transfer of any intellectual property rights in or related to the Platform. This includes any enhancements or modifications of the Platform, and our name and logo.
6.2 You are granted a limited, revocable licence to use the Platform for the purposes contemplated in these Terms of Use, subject to your compliance with the Terms of Use.
6.3 Any names or logos clearly associated with a User are and will remain the sole property of the User.
6.4 You must not do anything which breaches or otherwise interferes with our intellectual property rights, the intellectual property rights of any of our third-party licensors, or the intellectual property rights of any User. You may not distribute, reproduce, publish, alter, modify or create derivative works from the Platform without our prior written permission or the relevant third-party licensor or exploit such contents for commercial benefit.
6.5 You acknowledge and agree that damages may not be an adequate remedy for a breach of this clause 6 and that equitable or injunctive relief may be necessary.
7. Third party sites and content
7.1 We do not endorse, screen, or approve any third-party content, offerings, or materials which are made available to Users.
7.2 The Platform may contain links to websites that are owned and operated by third parties. We have no control over these external websites, which are governed by terms and conditions and privacy policies independent of us.
7.3 You acknowledge and agree that when you access a third-party website available via a link contained on the Platform:
you do so at your own risk and understand that you should review the privacy policy and terms and conditions of that website;
we are not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third-party website; and
you acknowledge and agree that to the full extent permitted by applicable law, we will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access or use of any third-party website available via a link on the Platform.
7.4 You acknowledge that the Platform contains access to third-party content (including without limitation, content uploaded by other Users) and other interactions over which we have no control. We assume no responsibility for, nor do we endorse, screen, or approve any third-party content, offerings, or materials made available to you on the Platform, or the conduct of third parties who participate on the Platform.
8. Limitation of liability
8.1 To the maximum extent permitted by law, we exclude all warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied (the Warranties) whatsoever unless expressly stated, including but not limited to in relation to any other User of the Platform or any goods or services offered by us or any User, and in relation to any Uploaded Content.
8.2 You acknowledge that we do not vet, endorse or recommend (and exclude all liability for) any particular User, goods or services offered on the Platform. Any rating information displayed on the Platform consists of statements of opinion and not statements of fact or recommendations.
8.3 You acknowledge that any advice or information provided on the Platform is of a general nature only and we do not guarantee that it is true, accurate or current.
8.4 You acknowledge that when you use the Platform or the Account in any way, you do so entirely at your own risk and relying on your own enquiries and judgement. We exclude any liability arising in connection with you losing access to your Account or any unauthorised access to your Account. You are solely responsible for maintaining the security of your Account. Likewise, you are solely responsible and liable for any activity on your registered Account, and the security of your registered Account.
8.5 You acknowledge that we will modify the Platform from time to time, including by adding, modifying or deleting features and functions, in an effort to improve your experience and may do so without notice to you. Whilst we endeavour to not make changes that materially reduce the functionality provided to you, we cannot guarantee the Platform will continue to meet your business needs as a result of these modifications.
8.6 We expressly disclaim any representation or warranty that the Platform or goods and services offered by us or any User complies with all applicable laws and regulations outside of Australia. If you use the Platform outside of Australia, you expressly understand and agree that you are responsible for determining compliance with different laws, regulations, or customs that may apply in connection with your use of the Platform.
8.7 To the extent that any law restricts our right to exclude Warranties under the Terms of Use, the Terms of Use must be read subject to those provisions and nothing in the Terms of Use is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, notwithstanding any other provision of the Terms of Use, to the extent that we are entitled to do so, we limit our liability pursuant to such provisions:
in the case of goods:
to the replacement of the goods or the supply of equivalent goods; or
to the payment of the cost of replacing the goods or of acquiring equivalent goods; and
in the case of services:
to the supply of the services again; or
to the payment of the cost of having the services supplied again.
8.8 Our liability arising in connection with the Terms of Use or the Platform is limited as follows:
we exclude all liability for consequential, special, indirect or remote loss, including loss of opportunity or business;
our total maximum total liability arising in connection with the Terms of Use is capped to the total amount of $1,000;
our liability is excluded to the extent that you contributed to the liability;
we exclude all liability for anything you have been aware of for longer than six months and you have not commenced a claim;
we exclude all liability in relation to any content on the Platform including, without limitation, any Uploaded Content; and
our liability is subject to your duty to mitigate your loss.
8.9 We expressly disclaim any warranties with respect to the accuracy of the data resulting from the Platform and/or any actions you may pursue or refrain from taking pursuant to such output.
8.10 We provide the Platform on an “as is” and on an “as available” basis without any Warranties as to continuous, uninterrupted or secure access to the Platform, that its servers are free of computer viruses, bugs or other harmful components, that defects will be corrected, or that you will not have a disruption or other difficulties in using the Platform.
8.11 In the event that we terminate the Platform or your access to the Platform pursuant to the Terms of Use, you release us from all liability, loss or claims suffered by you as result of or arising out of such termination.
8.12 All subclauses of this clause 8 are cumulative to one another.
9. Release and Indemnity
9.1 To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
9.2 To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.
9.3 In this clause:
Claim means a claim, action, proceeding or demand made against a person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent;
Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable;
Released Parties means us and our officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, related parties, related body corporates, sponsors, and other third-party partners; and
Relevant Matter means anything in connection with:
any damage to person, property, personal injury or death;
your breach of the Terms of Use;
any matter for which we have purported to disclaim or exclude liability for under the Terms of Use;
any Uploaded Content;
your use, misuse, or abuse of the Platform; and
your breach or failure to observe any applicable law.
10. Termination
10.1 You acknowledge and agree that:
we may terminate your access to the Platform at any time without giving any explanation;
we may terminate the Terms of Use immediately by notice to you in writing if you are deemed to breach the Terms of Use or associated policies in any way, in our sole discretion; and
termination of the Terms of Use or your access to the Platform does not release you from any of your obligations and liabilities that may have arisen or been incurred prior to the date of such termination.
11. General
11.1 You must not assign, sublicense or otherwise deal in any other way with any of your rights under the Terms of Use.
11.2 If a provision of the Terms of Use is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
11.3 The Terms of Use are governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of the courts of New South Wales and all courts of appeal from there.
11.4 Any waiver of any term on the Terms of Use by us can only be done in express writing. Any failure on our part to enforce a term does not constitute a waiver and we reserve the right in relation to all breaches unless expressly stated otherwise.
11.5 The contents of the Terms of Use constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of the Terms of Use, whether orally or in writing.
11.6 A provision of the Terms of Use which can and is intended to operate after its conclusion will remain in full force and effect – including without limitation clauses 4, 6, 8, 9, 10 and all indemnities, disclaimers and releases.
We acknowledge that we live and work on Aboriginal land and recognise the strength, resilience and capacity of First Nations Australians. We also acknowledge all of the traditional owners of the land in NSW, and pay respect to First Nations Elders, past and present.
