This Agreement was last revised on 12 Jan 2021.
A This Agreement is a legal agreement setting out the terms upon which RGC Consulting / RGC Health / RGC Consulting Asia / RGC Software (our, we, or us) will provide you the Services.
(i) clicking on the “I agree” (or similar) button or checkbox that is presented to you when signing up to a Subscription;
(ii) signing and providing to us a signed copy of this Agreement in hard copy; and / or
(iii) using and continuing to use the Services,
you are deemed to have accepted this Agreement.
C This Agreement commences on the date the earlier of the acceptance methods in paragraph B is exercised.
D If you are entering into this Agreement on behalf of a company, association, or other entity (incorporated or unincorporated), or on behalf of any partnership or as trustee of any trust, then the entity, partnership or trust will be bound by this Agreement and you represent and warrant that you have authority to bind the entity, partnership, or trust, to this Agreement.
E We may revise this Agreement from time to time. Where any changes materially affect your rights under this Agreement, we will endeavour to provide reasonable notice. You acknowledge and agree that your continued use of the Services constitutes your acceptance of this Agreement as amended. If you do not agree to the terms of this agreement as amended, you must immediately cease using the Services.
1.1 Agreement means these Terms & Conditions and any other documents or annexures referred to therein.
1.2 Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.
1.3 Commencement Date means the date on which this Agreement commences under paragraph B of the recitals of this Agreement.
1.4 Confidential Information means any information belonging to a party which that party claims as confidential to itself or which is determined, or ought to be determined, by the other party (acting reasonably) as being confidential, including, without limitation, financial information, technical information, and other proprietary information.
1.5 Policies means our terms and policies regarding acceptable conduct and use of the Platform from time to time.
1.6 Customer Data means any data you or your End Users provide us through the Platform.
1.7 End User means the person(s) whom access the Platform on your behalf.
1.8 End User Terms means any end user terms and conditions or usage policies we may require to be accepted by End Users from time to time.
1.9 Fees means the fees which you must pay us for the Services.
1.10 GST has the meaning given in the GST Law.
1.11 GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.12 Intellectual Property Rights means
(a) all rights conferred by law or in equity and subsisting anywhere in the world in relation to copyright, inventions (including patents, innovation patents and utility models), confidential information, trade secrets, technical data and know-how, designs, trade marks, circuit layout designs, topography rights and rights in databases, whether any of the foregoing is registered, registrable or patentable;
(b) any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist; and
(c) any licence or other similar right from a third party to use any of the above,
but excluding any moral rights and similar personal rights which by law are non-assignable.
1.13 Platform means any application that is supplied as part of the @epiffeny.com.au or epiFFEny.com domain.
1.14 Services means your access and use of the Platform in accordance with your Subscription.
1.15 Subscription means your subscription to access and use the Platform, including your resource limits, permitted number of End Users, the duration of your right to access and use the Platform, your access to Support, and the Fees payable for your use of the Platform, as we may offer and you may accept from time to time. In the event that a Subscription is not formally executed, the Subscription shall any agreement for the provision services by Us to You.
1.16 Support means helpdesk and configuration support which we may provide you in accordance with your Subscription.
2.1 We grant you the right to access and use the Platform for your own internal business purposes on the terms of this Agreement, up to the functionality, resources, number of End Users, and other permitted use, as provided in your Subscription.
2.2 Unless otherwise specified at the time you sign up to your Subscription, your Subscription will automatically renew on an ongoing basis until upgraded, downgraded, or cancelled.
2.3 If you upgrade your Subscription, you must pay the difference in Fees (if any) between your previous and new Subscription from the date the upgrade becomes effective.
2.4 If you downgrade your Subscription, we will credit you the difference in Fees (if any) between your previous and new Subscription from the date the downgrade becomes effective. For the absence of doubt, any refund of the difference in Fees or other arrangement is at our sole discretion.
2.6 If you exceed any resource limits under your Subscription, we may, at our sole discretion:
(a) charge you additional overage Fees;
(b) upgrade you to a higher Subscription tier;
(c) limit your ongoing use of the Platform until you cease exceeding our prescribed resource limits; or
(d) if, in our view, the resources limits have been egregiously or blatantly excessive, terminate this Agreement.
2.8 You acknowledge and agree that certain Platform features may be subject to your acceptance of different or additional terms (whether set out in this Agreement or a separate agreement between us, or between you and a third party), including, without limitation:
(a) additional Fees payable by you for continued access to that feature;
(b) the number of End Users whom you may authorise to access that feature;
(c) any dealing with Customer Data for the purpose of that feature;
(d) any restraints or additional conditions on that feature;
(e) resources limits applicable for that feature; and / or
(f) the security of that feature.
2.9 We will endeavour to provide you reasonable notice of any actual or anticipated Platform downtime (including any maintenance downtime). However, we reserve the right to take urgent action requiring downtime without notice if we reasonably consider such action necessary in order to protect the Platform’s operation and integrity (including your or any other person’s Customer Data).
3 End Users
3.1 You may change your End Users from time to time. However, your maximum number of End Users is the maximum prescribed under your Subscription.
3.2 We may require your End Users to accept, and comply on an ongoing basis with, our End User Terms in order for them to access or use the Platform. Without limiting any other rights we may have, if an End User refuses to accept, or breaches, our End User Terms, we may prevent, limit, or terminate, their access to the Platform. We are not responsible or liable to you as a result of any End User refusing to accept or breaching our End User Terms, or for our exercise of any of our rights against any such End User.
3.3 You are responsible for monitoring each End User’s access to and use of the Platform, and are responsible and liable for any act or omission of any End Users (or any other person whom gains access to the Platform through any act or omission of an End User) as if the act or omission were your own.
4.1 We will provide you with Support in accordance with your Subscription.
4.2 Our obligation to provide you Support is subject to:
(a) you directing all Support requests through our dedicated Support system as we may notify you from time to time;
(b) your Support request being placed by an authorised End User with all necessary information required for us to evaluate and / or action the request;
(c) your End User(s) following our directions and instructions in response to the request; and
(d) the reason for the Support request being a genuine request for Support arising from your use of the Platform in accordance with this Agreement. For the absence of doubt, we are not required to provide you support in respect of any third party goods or services, even if those third party goods or services impact upon your ability to access or use the Platform.
5 Your obligations and acknowledgements
5.1 You must comply with our Policies and any additional restrictions or requirements in relation to your access or use of the Platform which we may publish or notify you of from time to time.
5.2 You are solely responsible for maintaining your own IT infrastructure and operating environment to ensure that your operating environment satisfies any Platform compatibility requirements we may publish from time to time (e.g. hardware or device requirements, operating system and software version, or required bandwidth). We are not responsible for any defect, incident, outage, or other harm, arising due to your use of the Platform in an incompatible operating environment.
5.3 You and your End Users are solely responsible for all necessary procedures and controls for logins and passwords to access the Platform. If you or any End User believe that such access controls have been compromised, you must immediately update such controls and it is your sole obligation and liability to do so. For the absence of doubt, we are not required to monitor any access or usage of the Platform or the security and privacy of any access controls used.
6 Services generally
6.1 The output, or format of output, provided by the Services may vary from time to time and may not deliver all outputs or formats that you require. No guarantees, warranties, or representations are made as to the accuracy, completeness or utility of any material available through the Services at any time. Your use of any material made available to you through the Services is not a substitute for your own independent commercial decisions regarding matters of relevance to your business and you represent and warrant you have made your own enquiries and satisfied yourself of such matters.
6.2 We may engage third party suppliers from time to time in respect of all or any part of the Services, including, but not limited to, hosting, data warehousing, or e-mail or ticket-based support. The Customer consents to the disclosure of information (including Confidential Information and Customer Data) to those third party suppliers for the purpose of supplying the Services.
7.3 If you provide us your credit card, debit card, bank account, or other payment details, you authorise us to automatically charge all Fees payable by you to such account as and when they fall due.
7.4 You are solely responsible and liable for:
(a) ensuring that such details are kept correct and up-to-date; and
(b) verifying any invoice, payment due notice, payment details, or other information that you may receive from time to time. For the absence of doubt, if payment is not received by us (including if you make any payment to a third party in reliance on any such information, whether apparently from us or otherwise), we are deemed not to have received such payment and you remain liable for all Fees payable as and when due.
7.5 We may change our Fees from time to time on reasonable notice. Your continued acceptance of any Services constitutes your acceptance of the Fees as changed. If you do not agree to any fees as changed from time to time, you must terminate your Subscription.
(a) you have provided payment details under clause 7.3 and payment of your Fees via those details is subsequently declined; or
(b) you otherwise fail to pay any Fees as and when due,
then, without limiting any other rights we may have, we may:
(c) charge interest at the rate of 2% above the then-current unsecured commercial lending rate of the Commonwealth Bank of Australia, calculated and compounding daily, from the date payment fell due until the date payment is received (including following any judgment);
(d) recover from you any costs or expenses (including dishonour costs or expenses) incurred by us as a result of the non-payment;
(e) suspend your access to the Platform, in whole or part; and / or
(f) terminate this Agreement,
and you are not entitled to any compensation or other right as a result of our exercise of any right whether under this clause 7.5 or otherwise.
8.1 In this clause 8, words and expressions which have a defined meaning in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as in that Act.
8.2 Unless expressly stated, all moneys or other sums payable or consideration to be provided under this Agreement are exclusive of GST.
8.3 If GST is payable on any supply made under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time that the consideration for the supply is to be provided under this Agreement.
8.4 The supplier must deliver a tax invoice or an adjustment note to the recipient before the supplier is entitled to payment of an amount under clause 8.3. The recipient can withhold payment of the amount until the supplier provides a tax invoice or adjustment note as appropriate.
8.5 If an adjustment event arises in respect of a taxable supply made by a supplier under this Agreement, the amount payable by the recipient under clause 8.3 will be recalculated to reflect the adjustment event and a payment will be made by the recipient to the supplier or by the supplier to the recipient as the case requires.
8.6 Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:
(a) the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party, or to which the representative member for a GST group of which the other party is a member, is entitled; and
(b) if the payment or reimbursement is subject to GST, an amount equal to that GST.
9.1 This Agreement commences on the Commencement Date and continues until it expires or is terminated in accordance with this clause 9.
9.2 If you cancel your Subscription under clause 2.5, and you do not have any other active Subscriptions, this Agreement will expire on the same date as your Subscription.
(a) in accordance with clause 7.5 (non-payment);
(b) you are in material breach of this Agreement, or any of our Policies, and the breach cannot be remedied;
(c) you are in breach of any term of this Agreement, or any of our Policies, which is capable of remedy and such breach is not remedied within ten (10) days of our notice to you of such breach;
(d) you breach any law in respect of your access, use, or acceptance, of any Services;
(e) We elect, at our sole discretion, to terminate your Subscription and the Service with three (3) days notice to you.
9.4 You are not entitled to any compensation or other relief as a result of our termination under clause 9.3.
9.5 On termination or expiry of this Agreement, you must pay any outstanding Fees.
10.1 It is your responsibility to save and backup all Customer Data when using Services, and to ensure that such data is accurate, current, adequate, complete and suitable for its intended purpose.
10.2 We may use or disclose Customer Data for the purposes of providing the Services and communicating with you and / or your End Users, or if necessary to prevent injury or harm to any person or required by law or lawful authority.
10.3 Entities to whom we may disclose Customer Data include web hosting providers, email service providers, telecommunications service providers, data warehousing and analytics service providers, professional advisors, and our other third party service providers.
10.4 We will make all reasonable efforts to keep Customer Data confidential and secure in accordance with this Agreement. However, as a consequence of the inherent nature of cloud services:
(a) Customer Data may be communicated over networks that are not owned or operated by us;
(b) we are not responsible for any Customer Data that is lost, intercepted, altered or stored across such networks; and
(c) we are unable to guarantee complete security or confidentiality of Customer Data, or that third parties will never be able to defeat our security measures or those of our third party service providers.
10.5 Customer Data may be stored in multiple locations (including locations outside Australia) from time to time at our sole discretion.
10.6 We will delete Customer Data within a reasonable time after you cease using the Services or otherwise after receipt of notice from you permitting deletion of the Customer Data, unless we:
(a) are required to maintain copies of any Customer Data under law or by order of a lawful authority; or
(b) in our reasonable opinion, consider that retention of any Customer Data is otherwise necessary.
10.7 You represent and warrant that:
(a) Customer Data is at all times compliant with our Policies and all appropriate laws and regulations;
(b) you have all necessary rights and permissions to provide Customer Data to us; and
(c) your provision of Customer Data to us does not violate any laws, regulations, or the rights of any third party.
10.8 You are solely responsible and liable in respect of:
(a) monitoring the access or use of any Customer Data;
(b) the accuracy, completeness, and utility of any Customer Data; and
(c) any obligations (or breaches of obligations) under any laws or regulations in respect of Customer Data including, without limitation, privacy laws and laws in respect of Intellectual Property Rights.
(a) your Customer Data constitutes or contains, in whole or part, personal information; and
(b) there is a data breach in respect of your Customer Data which by law, or otherwise in our reasonable opinion, must be reported to affected persons or to any other authority or body,
in respect of that data breach:
(c) you are solely responsible and liable for reporting to such affected persons or authority or body; and
(d) we will provide you with reasonable assistance and information necessary for you to comply with those obligations.
11 Intellectual Property Rights
11.1 You do not obtain any right, title, or interest in Intellectual Property Rights in respect of the Services.
11.2 Subject to the terms of this Agreement, you grant us a non-exclusive, transferrable, global, royalty-free license to use, copy, modify, adapt, publish, transmit or broadcast, and otherwise deal with (including sub-license) your Customer Data.
12.1 To the extent permitted by law, and subject to clause 12.2, we exclude all guarantees, conditions, warranties and representations granted by statute or otherwise at law, including in relation to availability, access, merchantability, quality, fitness for purpose, integrity, value, quality, or security, of the Services. You represent and warrant that you have made your own independent enquiries and satisfied yourself of such matters prior to entering into this Agreement.
12.2 To the extent that any guarantee or warranty under the Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010 (Cth)) is read into this Agreement, to the extent permitted by that law, our liability for failure to comply with any such guarantee is limited, at our discretion, to:
(a) in the case of goods: the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of having the goods repaired;
(b) in the case of services: supplying the services or equivalent services again, or payment of the cost of having the services or equivalent services supplied again.
12.3 Except to the extent that any law provides otherwise, our maximum liability under this Agreement, whether in contract, tort (including negligence) or otherwise, is limited, per event and in the aggregate, to the Fees paid in the preceding twelve (12) months.
12.4 We are not liable under this Agreement:
(a) for any loss of profit, loss of revenue, loss of contract value, loss of anticipated profit, loss of opportunity, loss or corruption of data or software, or any other indirect or consequential loss not arising as a natural consequence of a breach or other event, which you may suffer or incur, whether in contract, tort (including negligence), or otherwise, even we had been notified or ought reasonably have been aware of the possibility of such loss; or
(b) to the extent that you or any of your End Users:
(i) contributed to your loss or damage;
(ii) could have taken reasonable steps to avoid or minimise your loss or damage.
You indemnify and keep us, our directors, officers, employees, contractors and agents, from and against any claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, charge, liability, or expense (including legal costs and expenses on an indemnity basis) however arising, whether present, unascertained, immediate, future or contingent, and whether based in contract, tort, statute, or otherwise, as a result of any:
(a) deliberate or negligent breach of this Agreement or any Policies or End User Terms;
(b) infringement of the rights (including Intellectual Property Rights) of a third party; or
(c) breach or infringement of any law,
by you or any End User.
You acknowledge and agree that any breach by you of this Agreement may constitute an unlawful and unfair business practice, and may cause irreparable harm to us, for which monetary damages would be inadequate, and you consent to our obtaining, in addition to any other remedies we may have in law or equity, any injunctive or equitable relief that we deem necessary or appropriate in such circumstances.
15 Third party claims
If any claim is brought against you by a third party alleging that your use of any Services infringes the claimant’s rights or has caused the claimant loss or damage (whether in contract, tort (including negligence), statute, or otherwise, in connection with this Agreement):
(a) you must promptly notify us and supply full details of the claim;
(b) we shall consult with you on an appropriate course of action and shall seek to minimise the effect of the claim on each other’s business;
(c) we shall have the right, but not the obligation, to take control of the conduct of the defence of the claim including any litigation and settlement negotiations;
(d) you must not, without our prior written consent, engage in any act or omission (including any admission or deemed admission) which may compromise the conduct of any defence of the claim, save for any such act or omission which we subsequently agree was necessary in order to maintain the defence; and
(e) we shall have the right, at our sole option, to:
(i) negotiate terms for your continued use of the Services;
(ii) modify the Services to mitigate the claim; and / or
(iii) terminate this Agreement with immediate effect.
16 Force Majeure
(a) act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;
(b) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;
(c) act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
(d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority;
(e) pandemic, epidemic, plague, pestilence, or other widespread illness, or any quarantine, lock-down, isolation, restriction on movement, or other directive of a government authority in respect of any of the foregoing; or
(f) strikes, blockades, lock out or other industrial disputes,
we will give you written notice as soon as reasonably practicable of the nature and effect of the event and will make all reasonable efforts to minimise the effect of the event. You acknowledge and agree that we are not responsible or liable for any omission or delay as a result of the event.
17.1 Neither of us may commence legal proceedings against the other of us (except for urgent interlocutory relief) unless we have complied with this clause 17.
17.2 If a dispute arises between us in relation to this Agreement, the disputing party must give notice of the dispute to the other party, and we must each use all reasonable endeavours to resolve the dispute.
17.3 If the dispute remains unresolved fourteen (14) days after notice under clause 17.2, each of us (acting reasonably) may agree to mediate the dispute before an agreed mediator, or if no person is agreed, a mediator nominated by the President of the Queensland Law Society or the President’s nominee.
17.4 Unless otherwise agreed,
(a) mediation will take place in Brisbane, Australia, or by video link; and
(b) each of us will be entitled to legal representation.
17.5 Each of us will use all reasonable endeavours to resolve the dispute through mediation as soon as practical including, but not limited to, providing the mediator with all information relevant to the dispute.
17.6 Each of us must bear our own costs of complying with this clause 17 and bear equally the mediator’s costs.
17.7 If the dispute remains unresolved thirty (30) days after the appointment of the mediator, a party that has complied with this clause 17 may terminate the dispute resolution process by giving notice to the other party in writing.
17.8 If a party breaches this clause 17 the other party need not comply with this clause.
18.1 For all correspondence to us, please contact us through the contact details provided through the Platform from time to time.
18.2 If we are required to correspond with you, we will contact you via the contact details you provide through the Platform or other agreed format. In instances where we have multiple contact details available for you, we will contact you using the most recent contact details we have on file. You represent and warrant that the contact details that you provide us are and will be kept up-to-date.
19.1 You must not assign, transfer, or novate, any of your rights or obligations under this Agreement, without our prior written consent (which will not be unreasonably withheld).
19.2 We may transfer or assign our rights or obligations arising under this Agreement. You agree to take all steps necessary to enable us to transfer, assign, charge, sub-contract or otherwise dispose of this Agreement.
19.3 Any waiver of any of our rights under this Agreement is not effective unless in writing signed by us. Any failure or delay by us in exercising a right under this agreement does not constitute a waiver of our rights. Any waiver by us will only waive our particular rights in the particular circumstances and will not waive any of our other rights, or the same rights in other circumstances.
19.4 If any clause of this Agreement is illegal, void or unenforceable in any jurisdiction, that clause may be severed for the purpose of that jurisdiction only and the remainder of this Agreement continues in full force and effect in that jurisdiction.
19.5 This Agreement constitutes the whole of the agreement between us and sets out all our respective rights and obligations relating to the subject matter therein, and replaces all earlier representations, statements, agreements and understandings except as stated otherwise in this Agreement. This Agreement shall supersede any execute or verbal Professional Services / Consulting Agreement (PSA or CSA) or such that We may have with you or another party on any project on which this application is being used for. You acknowledge and agree that you have not relied on any statement, representation, assurance or warranty made by any person (including a third party) in entering into this Agreement.
19.6 You acknowledge and agree that:
(a) where you may have a dispute or claim against us, this Agreement shall be interpreted in accordance the law of Queensland, Australia, and you submit to the exclusive jurisdiction and forum of the courts of Queensland, Australia, and any appellate courts; and
(b) where we may have a dispute or claim against you, due to the variety of events which may occur and which may cause us loss, we may be required to take action in other jurisdictions in order to protect our rights and you submit to whichever jurisdiction we consider appropriate for such dispute or claim.
20.1 Cookies are data that a website transfers to an individual’s hard drive for record-keeping purposes. Cookies, which are industry standard and are used by
most website, including those operated by us, can facilitate a user’s ongoing access to, and use of, a site.
These Terms, and any rights or licenses granted under these Terms, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted in violation of these Terms is void.
In this Agreement, unless the context otherwise requires:
22.1 A reference to an agreement includes any variation or replacement of the agreement.
22.2 Headings are provided for convenience and do not affect the interpretation of the documents making up this Agreement.
22.3 The words “include”, “includes” and “including” must be read as if followed by the words “without limitation”.
22.4 The singular includes the plural and the plural includes the singular.
22.5 If a word or phrase is defined its other grammatical forms have corresponding meanings.
22.6 Agreements, representations and warranties made by two or more people will bind them jointly and severally.
22.7 A reference to any legislation includes any consolidation, amendment, re-enactment or replacement of legislation.
22.8 A person includes the person’s executors, administrators and permitted novatees and assignees.
22.9 No rule of construction will apply to a provision of a document to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it.