Terms and Conditions

IMPORTANT NOTICE

Revised: 09/03/2020

DEFINITIONS

1. In Our Agreement, the following words and phrases have the following meanings:

1.1 API means the Epicuest Platform Pty Ltd Application Programming Interface, which allows remote access to the Services.
1.2 Availability means Your ability to access the Services on the Epicuest Platform Pty Ltd Server(s).
1.3 Business Day means a day upon which banks are ordinarily open for business in Brisbane, Queensland.
1.4 Commencement Date means the date that You clicked on the "Create Account" or "I Agree" button.
1.5 Content means data, information, images, and all other content that You put onto the Epicuest Platform Pty Ltd Servers.
1.6 Direct Debit Agreement – agreement between us to administer payments by you to us for the purposes of settling Fees.
1.7 Epicuest Platform Pty Ltd Server(s) means the hardware infrastructure where We host the Services.
1.8 Epicuest Services means the use of Epicuest Platform Pty Ltd's applications product for SMS, social media marketing, beacon proximity-based marketing, email e-marketing and loyalty and rewards programs, including all modules and features of the application from time to time accessible by internet from the Epicuest Platform Pty Ltd Servers, including data hosting and data management features.
1.9 Fees - Our Fees apply once you have opted to upgrade to a prepaid plan. Fees are shown on Our website and can also be accessed from within the Services and may change from time to time. Any other Fees You and We agree upon at Our prevailing rates for any other Services.
1.10 Force Majeure means a circumstance beyond Our reasonable control results in Us being unable to observe or perform on time an obligation in Our Agreement, including:-
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, power supply disruptions (howsoever caused), internet downtime and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
(c) industrial action or strikes.
1.11 Harmful Code means viruses, worms, trojan horses, spyware, malware, backdoor, and other computer programs and software code that harm a computer or a computer program, or operate in some other harmful or destructive way to hardware, software, data, or communications systems.
1.12 ISP means Internet Service Provider being a company that offers its customers access to the Internet.
1.13 Knowledge Centre means the online help application forming part of the Services.
1.14 Programming Services means computer programming services the scope of which is agreed upon in writing from time to time between Epicuest Platform Pty Ltd and You.
1.15 RRP (Recommended Retail Price) means all fees exclusive of local taxes (where applicable).
1.16 Services means the Epicuest Services, the Support Services, the Training Services, and the Programming Services.
1.17 Support Services means the support services we provide, as described elsewhere on Our Website.
1.18 System Maintenance Time means the time that the Epicuest Platform Pty Ltd Servers are inaccessible for reasons of systems maintenance, improvement, or upgrading.
1.19 Term means the term of Our Agreement, from the Commencement Date, until Our Agreement is terminated in accordance with clauses 4 to 9.
1.20 Training Services means the personal training services the scope of which is agreed upon in writing from time to time between Epicuest Platform Pty Ltd and You.
1.21 Website means all of the websites that Epicuest Platform own and/or operate from time to time, regardless of how those websites are accessed by users (including via the Internet, mobile phone or any other device), including www.epicuest.com, its associated subdomains and associated mobile site(s).

INTERPRETATION


2. In this Agreement, unless the contrary intention appears:-

2.1 words in the singular number include the plural and vice versa;
2.2 words importing a gender include any other gender;
2.3 a reference to a person includes bodies corporate and unincorporated associations and partnerships;
2.4 where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
2.5 a reference to a party includes its successors and assigns (where permitted);
2.6 a reference to the any schedule includes a reference to any part of that schedule which is incorporated by reference;
2.7 the recitals to this Agreement do not form part of the Agreement;
2.8 monetary references are references to Australian currency.

3. If any term, covenant, clause or condition of this Agreement, or the application of it to any person or circumstance, is deemed to be invalid or unenforceable, the remaining terms, covenants and conditions will not be affected and will be valid and enforceable.

TERM AND TERMINATION


4. Our Agreement commences on the Commencement Date.
5. Our Agreement continues until it is terminated by either party. If by You, using the online delete capability located within the Services. If by Us, where practical, giving prior written notice to You terminating Our Agreement. Following termination Your Data will be deleted within the confines of our Backup Cycles. No residual credit will be generated by termination or closing your account.
6. You or We may terminate Our Agreement at any time, without giving any reason for termination.
7. Notwithstanding the termination of Our Agreement, You must pay all amounts owing to Us for Services provided up to the time of termination which date is determined by clause 5.
8. Subject to clause 7, after the date of termination, any Content required to be extracted, where possible, from the Services will attract additional Fees.
9. Our agreement endures should you opt to ‘close your account’ within the service. The ‘close your account’ feature is specifically provided to allow you to re-activate your account at a later date. Should you however not re-activate your account within 15 months, Epicuest Platform Pty Ltd reserve the right to treat your account as deleted and therefore applying clause 5 – 7.

SERVICES


10. We will promptly provide to You all necessary login codes to access the Services on the Epicuest Platform Pty Ltd Servers.
11. For the Term, We will provide the Services to You by enabling You (through the login codes notified by Us to You) to access the Services in accordance with Our Agreement.
12. You acknowledge that internet servers and links are susceptible to hacking, crashes and down time.
13. Subject to a Force Majeure Event, and to System Maintenance Time, We will ensure (by ping test) that the Servers are available through the internet, 24 hours per day, for at least 99.95% of the time.
14. We do not warrant any response rate or download time in relation to the Services.
15. Keeping the Services up and running with as little interruption to your access is extremely important for both of us. We will use all reasonable endeavours to ensure whenever we need to perform maintenance we firstly explore ways in which this can be done without any interruption to the Services. In the event we cannot avoid disruption, We may, at Our own discretion, temporarily suspend the Services for the purpose of system repair, maintenance or improvement.
16. When it is reasonably practicable under the circumstances, We will provide You prior notice of any System Maintenance Time, the time of its commencement, and likely duration.
17. In the event of any service outage, We will restore the Services as soon as is reasonably practicable.
18. You acknowledge that it is impossible to maintain flawless security, but We will take reasonable steps to prevent security breaches in Your server's interaction with the Epicuest Platform Pty Ltd Servers.
19. You and We must comply with the all relevant privacy legislation including Privacy Act 1988 (Cth), and Our Privacy Policy (as it appears on Our website) in relation to the use of the Content.
20. Epicuest Platform Pty Ltd will comply with Chapter 2 of the Information Privacy Act 2009.
21. With regard to any Content uploaded for public view in the Knowledge Centre:

21.1 You grant us a non-exclusive, worldwide, royalty-free, perpetual, licence to use, reproduce, edit and exploit the Content in any form and for any purpose;
21.2 You warrant that you have the right to grant the above mentioned licence;
21.3 You warrant that the Content does not breach these Terms;
21.4 You otherwise acknowledge that Content you upload is free of copyright;
21.5 We may review edit, redisplay or remove that Content at Our sole discretion at any time.
21.6 We are not responsible for, and accept no liability with respect to, any Content uploaded, posted, transmitted or otherwise made available in the Knowledge Centre by any person other than us. For the avoidance of doubt, we will not be taken to have uploaded, posted, transmitted or otherwise made Content available simply by facilitating others to post, transmit or otherwise make Content available. Furthermore, we do not endorse any opinion, advice or statement made by any person other than us.

22. Epicuest Platform aims to protect You and Us from any spam related activity and related consequences. Where the Epicuest Services are used for spam, content from the Epicuest Platform Pty Ltd Server(s) may get blocked by major ISPs, which directly affects all Epicuest Platform’s clients’ ability to send emails. Accordingly, we adopt the following strategies and policies:

22.1 We, our employees and contractors may view, copy and transmit copies of your emails to help build monitoring tools, educational material, content for training courses and to spot problem accounts.
22.2 We and Our employees monitor bulk uploading of contacts and individual accounts that result in high bounce rates. We may view email addresses to look for patterns consistent with bought lists, lists procured by prohibited methods, or lists that can cause adverse consequences including damage to Our and Your reputation. In the event that we uncover this type of activity, We reserve the right to suspend or terminate Your access to the Services.
22.3 We have established relationships with several ISPs. These relationships include feedback loops and reporting systems. We are notified whenever a recipient clicks the 'this is spam' button within their email client. We monitor all notifications, and where a threshold is breached, we take appropriate action which may include deactivating the sender’s account. We also track and receive other forms of spam complaints and have regular contact with ACMA (Australian Communications & Media Authority) who enforce the SPAM Act 2003 (Cth). To avoid the negative consequences associated with spam related activity, we recommend you take the necessary steps as outlined in Clauses 23 to 40 - Your Responsibilities.

23. You must comply with the SPAM Act 2003 (Cth) and any other similar law in all countries of the world. 

24. You must ensure the security of Your login codes to the Services, and that only properly authorised persons have access to those codes. If you become aware that your login codes have been or may have been disclosed to any other person not authorised by you to use them, you must notify us as soon as practicable so that your login codes can be reset.
25. You must pay the Fees in relation to the Services accessed with Your login codes by any person to whom You have provided Your login codes or who obtained those login codes from You, whether authorised by You or not.
26. You will ensure that Your employees and other persons authorised by You to access the Epicuest Platform Pty Ltd Servers comply with Our Agreement.
27. You agree that You are solely responsible for implementing Your own procedures to satisfy Your own requirements for accuracy of data input and output and Content, and for maintaining a means external to Us for the reconstruction of any of Your lost data or Content.
28. You must not use the Epicuest Services to:

28.1 impersonate any other person or entity;
28.2 disseminate any Content that:
(a) is or could reasonably be expected to be abusive, harassing, threatening, offensive or obscene
(b) includes an image or personal information of another person or persons unless you have their consent;
(c) is not Content which you are legally authorised to use and/or disseminate, or which in any way violates or infringes (or could reasonably be expected to violate or infringe) the intellectual property or other rights of another person;
(d) poses or creates a privacy or security risk to any person;
(e) you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive);
(f) is unsolicited;
(g) is illegal in Australia;
(h) is illegal in any country to which the dissemination occurs;
(i) contains, promotes or provides information about unlawful or illegal activities or conduct;
(j) is Harmful Code; or,
(k) is defamatory.

29. You agree that you will not:

29.1 attempt to harvest or otherwise collect information about others, including email addresses or other contact details;
29.2 attempt to bypass measures used to prevent or restrict access to the Epicuest Services;
29.3 interfere with, disrupt, or create an undue burden on the Epicuest Services;
29.4 use any robot, spider, or other device or process to retrieve, index, or in any way reproduce, modify or circumvent the navigational structure, security or presentation of the Epicuest Services;
29.5 except to the extent permitted by law, modify, adapt, sublicence, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Epicuest Services or cause any other person to do so.

30. You warrant that the Content will not infringe the copyright or other intellectual property rights of another person. If any Content is alleged or found to be infringing the copyright or intellectual property rights of another person, You agree to indemnify and hold harmless Epicuest Platform, its directors, employees, servants, agents and assigns from any and all actions, suits, claims, demands, liabilities, costs expenses, loss or damage (including but not limited to legal fees on a full indemnity basis) that may arise out of your breach, whether intentional or otherwise, of the intellectual property rights of any person.
31. When sending emails to a list You should ensure that each recipient on Your list has given You permission to receive emails from You. When You send emails to people who have not given You permission, ISPs may block future emails from Your company. To help protect your deliverability You agree to never upload into the System or cause to send an email to any:

31.1 Purchased lists (even if purchased from a purportedly reputable source)
31.2 Rented lists, or
31.3 3rd party lists (e.g. a list obtained from a friend or associate)

32. If You do not yet have a permission list, We can help You grow Your own very quickly. Sign up for your free account, set up a new database and add a web form to your web site and start collecting visitor email addresses.
33. Some industries generate larger than acceptable bounces and spam complaints. As a consequence this puts at risk the entire deliverability of the Epicuest Services. Accordingly, the following industries or providers of content and services that fit into these categories are not permitted to use Epicuest Services:

33.1 ‘Get rich quick’ schemes;
33.2 Illegal substances;
33.3 Tobacco;
33.4 Gambling;
33.5 Pornography;
33.6 List brokers;
33.7 List rental services;
33.8 Multi-level marketing;
33.9 Affiliate programs.

34. If your business belongs to another industry that is similarly associated with spam and generating large amounts of complaints, your use of the Epicuest Services is likely to breach our thresholds and result in suspension or termination of your account. Accordingly, Epicuest encourages You to use a commercial email sending service more suited to Your business needs.
35. You agree to fully hold harmless and indemnify Us, our directors, affiliates, employees, agents, and assigns from and against any and all actions, suits, claims, demands, liabilities, costs expenses, loss or damage (including but not limited to legal fees on a full indemnity basis, and any loss of profits) that We may suffer arising from:

35.1 Any breach by You of the terms of Our Agreement,
35.2 Any misuse of Your login codes by You, or by any person whose access to Your login codes was from You, or Your failure to maintain the security of Your login codes, including any misuse that results in Content loss or misuse or Harmful Code upon the Epicuest Platform Pty Ltd Servers, or
35.3 Any breach by You of Our Agreement or any misuse of Your login codes resulting in any IP Address becoming subject to blacklisting (for example by SORBS), including the cost (approximately $150 per IP Address) to Us of remedying any blacklisting.

36. To ensure you can access the Services in the quickest and most efficient manner, it’s important you do not cause an overload through improper usage. You agree to use the Services in an acceptable manner where your usage accords with expected usage which includes, among other things:

36.1 Prohibiting the use of automated methods to extract data from the Epicuest Services (not including the API);
36.2 Not causing inbound data, excluding Content uploaded into the file manager that has its own rates above 50Mb, to the Epicuest Platform Pty Ltd Servers to exceed 100Mb per month. Excess data will be charged at a rate published within our API, web site or other documentation.

37. If you integrate with the Epicuest Services using the API, you must use efficient programming methods that will not cause too many requests to be made over a short period of time. If we feel your usage of our API is unacceptable, we reserve the right, in our absolute discretion, to throttle your API connections or suspend or terminate your access to the Services.
38. Please refer to Epicuest Platform Pty Ltd’s API website http://developers.Epicuest.com.au/ for the most efficient methods to use when integrating with the API.
39. You are responsible for your and any of your clients’ Content and shall be responsible for maintaining a backup copy of the Content. Under no circumstances will We be liable for any losses suffered by you arising from loss of data where you have not maintained adequate backup copies of your Content.
40. You agree not to use the Service for any other purpose than that for which it is intended.

SUPPORT SERVICES


41. We will provide the Support Services during usual business hours between 8.30am and 5.00pm on Business Days.
42. Support Services will be provided in the first instance by on line help accessible within the Services, in the second instance by email, and in the third instance by telephone (contact details available on Our webpage).
43. Free Support Services are limited to "How To" questions on product usage. Other Support Services may attract fees. At all times You will be notified prior to any fees being charged to You.

OTHER SERVICES


44. You and We may agree in writing that We will undertake Programming Services, Training Services, or specific Support Services.
45. Any such agreement in writing will set out

45.1 the scope of the work to be undertaken,
45.2 the remuneration to be paid by You to Us, and
45.3 the timeframe for the work to be undertaken.

 

 

 

FINANCIAL TERMS

46. Effective 1st July 2018 it is a mandatory requirement to record a credit card, debit card or bank account details on your account to use the Epicuest Services. We will direct debit your credit card, debit card or bank account in accordance with Clause 52.
47. You must pay the Fees to Us inclusive of the RRP (plus any applicable taxes for Australian Based Customers) as specified in Our invoices.
48. As Epicuest Platform Pty Ltd is based in Australia we will provide all customers with an invoice complying with the A New Tax System (Goods and Services Tax) Act 1999.
49. If you are using a prepaid service all invoices are due and payable when issued. We will direct debit your credit card, debit card or bank account in accordance with our direct debit agreement.
50. If you are a Post Paid Customer you must pay invoices within the time notified upon Our invoices. Alternatively, where You have provided credit card, debit card or bank account details we will direct debit Your credit card, debit card or bank account in accordance with Clause 52.
51. Should your direct debit fail your Epicuest Services functionality will be reduced until payment is received. You will still be able to access the system to update your credit card details. Should your payment details not be updated within 30 days we reserve the right to terminate your account.
52. By recording Your credit card, debit card or bank account on your account you authorise for your credit card, debit card or bank account to be credit/debit, with any associated invoices, fees, chargebacks, corrections and negative settlements created in relation to the provision of the Epicuest Services on the invoice issue date or shortly thereafter.
53. You are responsible for keeping your credit card or debit card details up to date and that there are sufficient funds available on your credit card, debit card or bank account details for us to obtain payment in accordance with this Agreement. You allow us the option of contacting you in the event of a direct debit failure, and as a reminder that your credit card or debit card details will be shortly expiring.
54. If a payment is declined by your bank, credit card or debit card provider, We reserve the right to charge you for any merchant processing fees or penalties incurred by reason of the declined payment.
55. If We are unable to recoup payments payable by you by reason of cancellation of your bank account or credit card, We reserve the right to issue an invoice to you for the balance of all monies due.
56. In the event that We must issue an invoice in accordance with clause 54 above, We reserve the right to:

56.1 Charge interest on all money outstanding in accordance with the General Interest Charge as published by the Australian Taxation Office from time to time; and
56.2 Assign the right to enforce any debts due to us to a third party, without further consultation to you.

EXCLUSION AND LIMITATIONS OF LIABILITY


57. You use the Services, including the Epicuest Services, entirely at Your own risk.
58. You acknowledge that We have not made any representation or warranty that is not expressly contained in Our Agreement.
59. You do not rely upon any statement or representation by Us or on Our behalf that is not expressly contained in Our Agreement.
60. We cannot guarantee continuous, error-free or secure access to the Services or that defects in the Epicuest Services will be immediately corrected. While We will use all reasonable efforts to maintain an uninterrupted service, we cannot guarantee this and we do not give any promises or warranties (whether express or implied) about the availability of our service.
61. Accordingly, to the extent legally permitted, we disclaim all warranties, representations and conditions, express or implied, including those of quality, merchantability, fitness or suitability of any Service for a particular purpose, and those arising by statute. You agree and acknowledge that We are not liable for any loss, whether of money (including profit), goodwill, or reputation, or any special, indirect or consequential or incidental damages arising from your use of the Services, even if you advise us or we could reasonably foresee the possibility of any such damage occurring.
62. To the full extent permitted by law, We exclude all liability in respect of:

62.1 loss of data;
62.2 Interruption of business; or
62.3 Harmful Code that You may download from Our website.

63. We shall have no liability to You arising from any system downtime, any System Maintenance Time, or any Force Majeure Event, and You are not entitled to any setoff, discount, refund or credit arising from any of the foregoing.
64. These Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, we limit our liability in respect of any claim to, at our option:

64.1 the re-performance of the Services;
64.2 the cost of the resupply of the Services.

65. If we are found to be liable, our liability to you or any third party (whether in contract, tort, negligence, strict liability, by statute or otherwise) is limited to the total fees you pay to us in the 12 months prior to the action giving rise to liability.

CONFIDENTIALITY


66. We will maintain the Content in confidence, and will not disclose the Content without Your prior written consent.
67. Clause 66 does not apply to the extent that We have a legal obligation to disclose the Content.
68. We will not sell the Content to any person.
69. You acknowledge that some of Your Content (such as email addresses in your database/s) may at the same time be part of the content of Our other customers.
70. You acknowledge that We have an obligation to report any illegal act by You, and accordingly We are under no obligation of confidentiality in relation to any such illegal act by You.

DISPUTES


71. We will promptly notify each other in writing of any dispute in connection with Our Agreement.
72. Upon the written notification of a dispute, You and We shall use our best endeavours to resolve the dispute in good faith, and expeditiously.
73. If a dispute has not been resolved within 5 Business Days, You and We will refer the matter to our respective Chief Executive Officers (or a senior person delegated by a Chief Executive Officer), who shall use their best endeavours to resolve the dispute in good faith, and expeditiously.
74. If the dispute has still not been resolved with a further 5 Business Days, You and We will use our best endeavours in good faith to within a further 5 Business Days agree upon an alternative dispute resolution process (such as mediation, arbitration, conciliation, or expert determination) to resolve the dispute, and shall in good faith implement that alternative dispute resolution process.
75. Neither You nor We may commence legal proceedings against the other until You and We have complied with clauses 71 to 73.
76. Clause 75 does not apply to any urgent interlocutory relief.

VARIATION OF OUR AGREEMENT


77. We may vary any term of Our Agreement at any time. Notification of any variation will be posted within the Services.
78. The variation takes effect 30 days after notice of the variation is posted.
79. If You do not agree to be bound by the variation, You may by logging into the Services, terminate this Agreement before the expiration of that 30 day period.

SERVICE OF NOTICES


80. Any notice (including a notice under clauses 71 to 76 may be served by delivery to, or sending it by post to the party to be served, or by sending it by email:

80.1 if to Us, send to sales@epicuest.com or any other email We may post, or
80.2 if to You, to an email address notified by You to Us in Your management of Your online Epicuest Platform Pty Ltd account.

81. A notice that is posted shall be deemed received seven days after the date of posting.

GOVERNING LAW


82. Our Agreement is governed by and to be construed according to the law of Queensland.
83. You and We irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.

GENERAL


84. If We do not enforce any particular provision of these Terms, we are not waiving our right to do so later.
85. You may not assign, sub-licence or otherwise deal in any other way with any of your rights under these Terms.