Terms & Conditions

TERMS & CONDITIONS

DigiChat Pty Ltd is a professional company that provides world-class relationship marketing software (the platform) and services. gCastTM is made available to you by DigiChat Pty Ltd, with its principal offices in Brisbane, Queensland, Australia. ("DigiChat"). This page contains the terms and conditions ("Terms and Conditions") for all DigiChat products - these include an SME version called gCast and a Corporate version which we call gCast Affiliate for Enterprise (collectively these products are known as "DigiChat Programs").

By using gCast you agree to any published prices as described on https://grow.gcast.com.au or on the Proposal and Acceptance Form and to these Terms and Conditions.

DigiChat Programs are only available to business users. If you are implementing DigiChat Programs on behalf of a company, partnership or other legal entity, you represent and warrant that you have authority to bind that entity to these Terms and Conditions. If you do not have this authority then please do not use this service.

Program Availability

DigiChat provides gCast "as is" to clients as an internet-based application.

With the exception of planned maintenance and unforeseen system outages, DigiChat will undertake to have the program available to clients at all times.

DigiChat will advise clients of any planned program maintenance with as much notice as possible, either by news announcement on the gCast homepage or by email.

As the program is delivered via the internet, DigiChat takes no responsibility for a client's inability to access the program due to internet or telephone provider failures.

DigiChat tests gCast in common internet browsers and attempts to cater for as many versions as possible. Different browsers may produce different results.

Support Availability

DigiChat client support is available on Queensland, Australia business days from 8:30am to 5:30pm AEST via telephone and email. General support enquiries will be answered during the initial communication.

Where further investigation or assistance is required, DigiChat support staff will advise the client of the course of action to be taken.

DigiChat client support endeavours to respond to client enquiries received by phone within two business hours. We will also endeavour to respond to enquiries received by email within 24 business hours.

In order to receive a timely response, clients accept that they will be required to provide DigiChat with all relevant information in a timely manner.

Additional Support Programs

Client support is subject to fair use. DigiChat expects that general client support requirements will not exceed one hour per month. Clients who require additional support can purchase it per hour as per the current rate card.

Clients are also able to purchase support packages on a month to month basis.

Your Business Use Only

DigiChat Programs are licensed to your business for your business use only and must be used in compliance with all applicable laws, rules and regulations. If you want to make commercial use of DigiChat Programs including but not limited to selling or distributing DigiChat Programs for payment, you must enter into a separate written agreement with DigiChat.

The Service

DigiChat offers its Programs such as gCast on an "as is" basis. Through gCast, DigiChat provides marketing tools, information, information management and storage and support. Users can create and send communication campaigns (e.g. email and SMS) using the tools to distribute content supplied by gCast to the User.

The User acknowledges that DigiChat does not create any content other than the Pre Written Promotional Copy Content and Generic HTML Templates and that DigiChat is not the author or the publisher of any User campaigns. DigiChat does not review the Content of any communication created by users on gCast and is not responsible for such content.

We do however reserve the right to delete, move or edit any content (including content posted in any future chat room or Blog areas we create) that we determine in our sole discretion, contravenes our Terms and Conditions, The Australian Privacy Act, or is otherwise deemed unacceptable.

If you are asked to register with any DigiChat Programs you must provide complete and accurate identification, including relevant contact, and other information required as part of the registration process. If requested, you will do everything necessary to provide us with any documents requested for any purpose in relation to our service this includes but is not limited to information to complete credit checks.

The platform's cost is billed as a service in its entirety, irrespective of usage levels. The program is offered on a monthly basis and billed accordingly to the person specified in gCast, as the assigned billing contact. If for whatever reason you do not receive your monthly invoice, or where a problem arises from an invoice, you agree to contact DigiChat accounts directly to request a new statement to keep your account up to date. In the instance where your account falls under a parent company, the invoice will be billed to you through your representative.

All prices, plans and services offered by DigiChat are subject to change without notice. Clients or their parent affiliate are solely responsible for notifying DigiChat in writing where changes, upgrades or revisions to their account are warranted. Where applicable, we may request a signed document approving the change to the account.

If you are using DigiChat Programs you may make them available to other users in your organisation, by creating a User Name and Password (via the Administration link in gCast) and then emailing them the http://www.gcast.com.au URL and their relevant log in details. Each user will be required to agree to these Terms and Conditions before they use gCast. You will be required to assign a unique User Name and Password.

By creating and providing accounts to these staff members, there is implied authority that these individuals have the rights to act on your behalf. This includes the right to create and disseminate information through all available gCast streams. Any costs accrued by the actions of additional staff members become the responsibility of the client, payable as part of the regular program cost, or as additional expenses where applicable.

Furthermore, the user agrees to ensure their messages, including those of their partners or staff members, do not contain any inappropriate material or content as outlined below.

Content Posted

DigiChat does not sanction and has no control over the content sent in any gCast communication campaign. DigiChat makes no warranties, expressed or implied, as to the focus or to the accuracy and reliability of the content or any material or information that is transmitted to other persons, businesses or organisations.

By uploading creative content into the gCast system you automatically substantiate that you own the rights to use such material.

Creative content includes, but is not limited to: written promotional material, artistic imagery, pictures and depictions, product information, program documents and the addition of original templates, to the template library. The implicit confirmation of the rights to use such content includes but is not limited to, the verification that you are not infringing any copyright laws, rules or regulations and have permission to share such matter.

Once uploaded, DigiChat reserves the right to reproduce, publish or distribute the aforementioned content at their sole discretion, without notice. All content, including but not limited to the aforesaid, uploaded by sub-partners who fall under a parent structure, surrender the creative content for use by both DigiChat and additionally, their parent company. DigiChat and the relevant parent company automatically gain the rights to reproduce, publish or distribute such creative at their sole discretion without notice. DigiChat assumes no responsibility and does not sanction the reproduction of any such material by the relevant parent company. Should a parent company have sub-partners falling under their account when they upload creative content, they relinquish all use to these entities, for utilisation at the sub-partner's discretion.

Databases imported to the platform must comply with the SPAM Act in your country of jurisdiction and any relevant privacy policy including that of DigiChat. Databases must be comprised of persons who have been duly informed they will be communicated within accordance to your opt-in method and instructions. Where appropriate DigiChat may, at any time, request proof of interrelated opt-in methods to substantiate their compliance with current SPAM laws in your country's jurisdiction and may refuse patronage, at their sole discretion, to potential clients if such methods do not meet industry standard.

DigiChat may at any time delete any content that, in the sole judgment of DigiChat, violates this agreement including content that may be offensive, illegal, harm or threaten or violate the rights or the safety of any person. DigiChat assumes no responsibility for supervising gCast services for unsuitable content or conduct. The clients and partners of DigiChat are solely accountable for the content sent in any gCast communication campaign.

DigiChat and related staff shall be released from any claims associated with any conduct committed in direct challenge to any of the above actions.

Prohibited Content

DigiChat reserves the right to investigate and take suitable legal action against anybody who, at DigiChat's sole discretion, contravenes this provision, including without constraint to, removing the offending communication and ceasing the membership of such violators.

Prohibited content includes, but is not limited to content that is (or is deemed by DigiChat in its sole discretion) to be or to include material that:

  1. is false or misleading;
  2. is offensive or criminal in nature, that promotes hatred, vulgarity, profanity, racism, bigotry, or physical harm of any kind against any group, individual, business or organisation;
  3. constitutes harassment or defamation of any person, business or organisation;
  4. contains an image of another entity without that entity's prior written consent;
  5. exploits people or animals in a sexual or violent manner or contains nudity, or distasteful focus matter or contains a connection to an adult website.

Prohibited Actions

You as a client of DigiChat may not (unless expressly permitted by DigiChat in writing):

  1. distribute DigiChat Programs or any services or software associated with or derived from it, except as expressly permitted above in relation to DigiChat Programs;
  2. sub-licence your right to use DigiChat Programs;
  3. modify, copy, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or create derivative works from DigiChat Programs or
  4. extract significant portions of DigiChat's files or promotional material for use in other applications.

You as a client of DigiChat expressly agree and covenant not to engage in any Prohibited Activity when using DigiChat services.

"Prohibited Activity" when using DigiChat Services includes, but is not restricted to:

  1. unlawful behaviour including but not limited to: publishing, procuring and/or depicting child or other illegal pornography, fraud, trafficking in obscene material, promotion of drug dealing, promotion of gambling, harassment, stalking, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
  2. Attempts to obscure the advertisements if your applicable plan definition includes the provision of advertising on gCast's emails;
  3. Obtaining revenue from paid advertisements or product promotion, of any organisation, not previously approved in writing by DigiChat in your campaigns, whether your plan definition includes the provision of advertising or not.

Supported By (only relevant for clients of Locify and or DigiChat where license costs are in part or fully paid for by 3rd party sponsors)

Clients paying an Ad Supported program cost must not obscure, tamper with, remove or prevent advertisements from running as intended by DigiChat. Should advertisements not run as intended due to client interference, DigiChat reserves the right to seek compensation for lost revenue.

Clients are provided the opportunity to opt out of advertisements which may be directly competitive to their businesses. Advertisements which are directly competitive, as deemed by DigiChat, are not able to be opted out of.

Due to the subsidised program cost for Ad Supported clients, those clients commit to the following requirements associated with paying a reduced program cost. Clients who do not wish to fulfil these requirements will be assigned a full fee-paying program cost.

Ad supported program cost requirements:

  1. Upon activation of the client's gCast account they will create and send (either independently or by paying a third party service provider such as DigiChat) an introductory campaign to members including an "Update your Details" component to gather additional member information.
  2. Update your Details must include the following minimum demographics to be collected: DOB, gender, postcode, given name, email address.
  3. All campaigns sent will include a prominent "Update your Details" link to encourage members to update and provide additional information as above.
  4. All campaigns sent will include a prominent "Refer a Friend" link to encourage database growth.
  5. Ad supported clients will undertake a minimum of two Update your Details campaigns per annum to ensure their member database includes as much demographic data as possible for the purposes of targeting their communications and advertising.
  6. HTML template width will not exceed 650 pixels.
  7. Minimum of 2 active Set and Forget email campaigns at any time (eg. birthday wishes and a welcome email for new member registrations).

Automatic Updates

DigiChat constantly strives to improve all its Programs. Consequently from time to time we will release new features and update existing features. DigiChat reserves all rights in relation to such new releases and updates.

Information Practices

Protecting users' privacy and the privacy of each member in your database is extremely important to DigiChat. As a condition of using DigiChat Programs, you agree to the terms of the DigiChat Privacy Policy, which DigiChat reserves the right to update as and when required.

DigiChat does not use cookies or other such devices to track or collect personal information; however, we reserve the right to implement such recognised and widely used practices at a future date if we deem that doing so will substantially increase our ability to provide end users with a better service.

Intellectual Property

You acknowledge that DigiChat owns all rights, titles and interests in and to DigiChat's version of gCast, the marketing platform it provides and any software or content provided through or in conjunction with gCast, including without limitation all Intellectual Property Rights. "Intellectual Property Rights" means any and all patent rights, copyright, trade secrets, trade and service marks, design rights, rights in or relating to database management, database design, and database systems, rights in or relating to confidential information and any other intellectual property rights throughout the world, whether registered or unregistered and including applications for any such rights.

You agree to not remove, obscure, or alter gCast's or DigiChat copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through gCast.

Feedback

If you have comments on gCast or ideas on how to improve it, please let us know. Please note that by doing so, you also grant DigiChat permission to use and incorporate your ideas or comments into gCast or any future DigiChat products or offerings without further compensation.

Changes to Terms and Conditions

DigiChat may update these Terms and Conditions from time to time. If DigiChat updates these Terms and Conditions, it will use its best endeavours to inform you of such updates by way of messages on our gCast login pages or by using another method which we consider appropriate. If you do not agree with any changes to the Terms and Conditions, you should let us know immediately. If you do not advise us within 14 days of any change to these terms and conditions, we will deem you to have accepted those changes.

Termination by You

If you are on a fixed 12-month contract, you may terminate your contract with us for the provision of the gCast service only by giving 30 days notice of your intention to terminate during the final calendar month of any fixed 12-month contract.

If you do not provide DigiChat with notice in writing that you intend to terminate the contract during the final calendar month of your contract, you will be deemed to have extended your contract for a further fixed 12 month period which in turn may only be terminated in its final calendar month.

These deemed rollover provisions shall operate in respect of every 12-month contract until such time as your contract is terminated in accordance with this clause. If you are not on a fixed 12-month contract you must provide DigiChat with 30 days notice in writing of your intention to terminate your contract.

In the event, of the termination of any contract whether a fixed 12-month contract or otherwise you must destroy all copies of gCast templates, promotional copy, artwork and any other components of gCast and or other DigiChat material.

Termination by DigiChat

Without prejudice to any other rights, DigiChat may lock your account in the event that you fail to comply with our terms and conditions, including but not limited to, if you fail to pay any invoice within 30 days of the date of the invoice. DigiChat may terminate our services to you if you fail to comply with our terms and conditions (including the non-payment of any invoices). In such event, you must destroy all copies of gCast templates, promotional copy, artwork and any other components of gCast and or other DigiChat material.

Disclaimer

To the fullest extent permitted by law, gCast is provided "as is".

To the fullest extent permitted by law, DigiChat disclaims all implied warranties, conditions and other terms including, without limitation, those regarding the security, reliability, timeliness, and performance of gCast.

Limitation of Liability

Nothing in these Terms and Conditions shall exclude or limit liability for:

  1. death or personal injury resulting from the negligence of either party or their servants, agents or employees;
  2. fraud or fraudulent misrepresentation;
  3. breach of any implied condition as to title or quiet enjoyment;
  4. any liability which may not by law be excluded.

Subject to the first paragraph of this clause, neither party shall be liable under or in relation to these Terms and Conditions or their subject matter (whether such liability arises in tort (including negligence), breach of contract, misrepresentation or otherwise) for:

  1. any economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings);
  2. the cost of obtaining similar or substitute services from anyone;
  3. any loss of goodwill or reputation; or
  4. any special, indirect or consequential losses;

In each case, whether or not such losses were within the contemplation of the parties at the date of acceptance of these Terms and Conditions.

Subject to the first paragraph of this clause, DigiChat's total liability under or in relation to these Terms and Conditions or their subject matter (whether such liability arises in tort (including negligence), breach of contract, misrepresentation or otherwise) shall not exceed one month's License fee, with a maximum total being $250.00.

Subject to the first paragraph of this clause: (a) under no circumstances shall DigiChat be liable to any user on account of that user's misuse of gCast; and (b) neither party shall be liable for any matter which is outside that party's reasonable control.

Miscellaneous Provisions

These Terms and Conditions will be governed by and construed in accordance with the laws of Queensland, Australia, and you and DigiChat hereby submit to the exclusive jurisdiction of the Australian courts in respect of any dispute or matter arising out of or connected with these Terms and Conditions. Notwithstanding the preceding sentence, nothing in these Terms and Conditions shall restrict or limit DigiChat seeking injunctive or similar relief in any jurisdiction.

If for any reason a court of competent jurisdiction finds any provision or portion of these Terms and Conditions to be unenforceable, the remainder of these Terms and Conditions will continue in full force and effect.

DigiChat may assign its rights and/or obligations under these Terms and Conditions (in whole or in part), at any time, without your consent.

These Terms and Conditions incorporate and should be read with the Proposal and Acceptance Form or any other proposal by DigiChat. You acknowledge that DigiChat, its servants and agents have not made any other promises or representations to you and to the extent that it or they have, these Terms and Conditions supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding your use of DigiChat products and all related subject matter.

Any waiver of any provision of these Terms and Conditions will be effective only if in writing and signed by DigiChat and/or a third party who makes its software and/or content available in conjunction with or through DigiChat.

These Terms and Conditions are valid as of 3rd April 2020.