Terms of Use

These Terms of Use ("Terms") govern your access to and use of the websites, applications and services provided by Evoqed (trading as Evoqed Digital) (ABN 74 540 751 594) ( "Evoqed", "Evoqed Digital", "we", "us" or "our"), including our software-as-a-service platform and any related services (together, the "Services").

By accessing or using the Services, you agree to be bound by these Terms. If you are using the Services on behalf of an organisation, you are agreeing to these Terms for that organisation and represent that you have the authority to bind that organisation. If you do not agree to these Terms, you must not use the Services.

1. Eligibility and accounts

You may only use the Services if you are at least 18 years old and have the legal capacity to enter into a binding contract.

To access certain features of the Services, you may need to register an account and provide accurate and complete information. You agree to keep your account information up to date, maintain the confidentiality of your login credentials, and promptly notify us if you become aware of any unauthorised access or use of your account. You are responsible for all activities that occur under your account.

2. Subscriptions, fees and payment

Access to some or all of the Services may require a paid subscription or other fees. The applicable subscription plan, billing cycle, fees and inclusions will be described on our website or in an order form, proposal or other commercial agreement ("Subscription Terms").

You agree to pay all fees and charges in accordance with the Subscription Terms and any applicable taxes. Unless otherwise agreed in writing, fees are billed in advance on a recurring basis, payment is processed through our third-party payment provider, and you authorise us and our payment provider to charge your nominated payment method for all fees due.

We may change our fees from time to time. Fee changes will not apply retrospectively to your current billing period and we will provide reasonable notice of any material changes. Except as required by law (including under the Australian Consumer Law) or as stated in the Subscription Terms, all fees are non-refundable.

3. Your obligations and acceptable use

You agree to use the Services only for lawful purposes and in accordance with these Terms, to comply with all applicable laws, regulations and third-party rights, and to obtain and maintain any necessary consents from end users or other individuals whose personal information you process using the Services.

You must not:

• use the Services in any way that is unlawful, fraudulent, misleading or harmful;
• attempt to gain unauthorised access to the Services or related systems or networks;
• interfere with or disrupt the integrity or performance of the Services, including by introducing malware, overloading systems or attempting to bypass security measures;
• use the Services to store, transmit or otherwise process any content that is defamatory, obscene, offensive, discriminatory or otherwise objectionable, infringes any intellectual property or privacy rights, or contains viruses, worms or other malicious code;
• reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or underlying ideas or algorithms of the Services (except to the extent such restriction is prohibited by law);
• use the Services to build a competing product or service or to benchmark or analyse the Services for competitive purposes.

We may, at our discretion and without liability, suspend or terminate your access to the Services if we reasonably believe you have breached this section.

4. Customer Data and privacy

You are responsible for all data, content and materials that you or your authorised users submit to, store in or process through the Services ("Customer Data"). You retain all rights, title and interest in and to Customer Data and are responsible for its accuracy, quality and legality and how you acquired it.

You grant us a non-exclusive, worldwide, royalty-free licence to host, copy, transmit, display, process and use Customer Data as reasonably necessary to provide, maintain and improve the Services, prevent or address service, security or technical issues, comply with law and enforce our rights under these Terms.

We will handle personal information in Customer Data in accordance with our Privacy Policy, which forms part of these Terms. By using the Services, you acknowledge and agree that we will collect, use and disclose personal information in accordance with our Privacy Policy and that you are responsible for ensuring you have a lawful basis to provide personal information to us and to process it through the Services.

5. Intellectual property

Except for the limited rights expressly granted in these Terms, we and our licensors retain all rights, title and interest in and to the Services (including all software, code, interfaces, designs, templates and documentation), all trademarks, logos and branding associated with the Services, and all improvements, modifications and derivative works thereof (collectively, "Evoqed IP"). No rights are granted to you other than as expressly set out in these Terms.

Subject to your compliance with these Terms and payment of any applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable licence to access and use the Services for your internal business purposes during the term of your subscription or authorised use.

If you provide us with feedback, suggestions or ideas about the Services ("Feedback"), you agree that we may use the Feedback without restriction and without any obligation to you, and you assign to us all rights in the Feedback.

6. Third-party services and integrations

The Services may enable you to access or integrate with third-party products, services or content (for example, payment gateways, CRM systems, analytics tools or other SaaS platforms). Your use of third-party services is subject to the terms and privacy policies of those third parties, not these Terms. We are not responsible for, and do not endorse, any third-party services or content and may modify or discontinue integrations at any time without liability to you.

7. Service availability and changes

We aim to provide reliable and continuous access to the Services but do not guarantee that the Services will be uninterrupted, secure or error-free.

We may, from time to time, perform maintenance or updates on the Services, modify or remove features or functionality, or release new versions of the Services. Where practicable, we will schedule maintenance to minimise disruption and will provide notice of any material changes.

We may offer beta, trial or experimental features or services ("Beta Features"). Beta Features may be made available for evaluation purposes only, may be changed, suspended or discontinued at any time, and are provided "as is" without any warranties.

8. Warranties and disclaimers

Nothing in these Terms is intended to exclude, restrict or modify any non-excludable rights or remedies you may have under the Australian Consumer Law or other applicable laws.

To the maximum extent permitted by law, and subject to the paragraph above, the Services are provided on an "as is" and "as available" basis and we do not guarantee that the Services will meet your requirements, be suitable for any particular purpose, or be free from errors, defects, security vulnerabilities or interruptions. You are responsible for ensuring the Services are appropriate for your intended use and for implementing and maintaining appropriate safeguards, backups and security measures for your systems and Customer Data.

9. Limitation of liability

To the maximum extent permitted by law, and subject to any non-excludable rights under the Australian Consumer Law:

• we exclude all liability for any loss of profit, revenue, goodwill or business opportunities, loss of or damage to data, or any indirect, consequential, special or punitive loss or damage arising out of or in connection with the Services or these Terms; and
• our aggregate liability for all claims arising out of or in connection with the Services or these Terms (whether in contract, tort (including negligence), statute or otherwise) is limited to the amount of fees you paid to us for the Services in the 12 months immediately preceding the event giving rise to the claim.

Nothing in these Terms limits or excludes liability for death or personal injury caused by negligence, fraud, fraudulent misrepresentation, or any other liability that cannot be excluded or limited under applicable law.

10. Indemnity

You indemnify us, our officers, employees, contractors and agents from and against any loss, damage, liability, costs and expenses (including reasonable legal costs) arising out of or in connection with your breach of these Terms, your misuse of the Services, or any claim that Customer Data infringes or violates any third-party rights. Your liability under this indemnity will be reduced to the extent that we caused or contributed to the relevant loss or damage.

11. Term, suspension and termination

These Terms commence when you first access or use the Services and continue until terminated in accordance with this section.

We may suspend or restrict your access to the Services if you breach these Terms or any Subscription Terms, if we reasonably believe your use of the Services poses a security, legal or operational risk, or if required by law or by a government or regulatory authority. We will endeavour to notify you of any suspension and the reasons for it where it is lawful and reasonable to do so.

You may terminate your use of the Services at any time by cancelling your subscription in accordance with the Subscription Terms or closing your account. We may terminate these Terms or your access to the Services by giving you reasonable prior notice, or immediately if you breach these Terms in a way that we reasonably consider cannot be remedied, or you fail to remedy a remediable breach after being given notice to do so.

On termination, your right to access and use the Services will cease, we may delete or deactivate your account in accordance with our data retention policies, and sections of these Terms which by their nature should continue to apply (including sections 4, 5, 8, 9, 10 and 12) will survive termination.

12. Governing law and disputes

These Terms are governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and the Commonwealth of Australia.

If a dispute arises, the parties agree to first attempt to resolve it in good faith by negotiation before commencing legal proceedings (except where urgent injunctive or equitable relief is required).

13. Changes to these Terms

We may update these Terms from time to time. When we make changes, we will update the "Last updated" date above and, where appropriate, provide you with additional notice (for example, by email or through the Services). If you continue to use the Services after the updated Terms take effect, you will be deemed to have accepted the changes. If you do not agree to the updated Terms, you must stop using the Services.

14. General

These Terms, together with any Subscription Terms or other documents expressly incorporated by reference, constitute the entire agreement between you and us regarding the Services and supersede all prior agreements or understandings relating to their subject matter.

If any part of these Terms is held to be invalid, illegal or unenforceable, that part will be severed and the remaining parts will continue in full force and effect.

A failure or delay by a party to exercise any right or remedy under these Terms does not operate as a waiver of that right or remedy.

You may not assign or transfer your rights or obligations under these Terms without our prior written consent. We may assign or transfer our rights or obligations under these Terms without your consent as part of a merger, acquisition, corporate restructure or asset sale.

We may provide notices to you via email to the address associated with your account, notifications through the Services, or by posting on our website. You can provide notices to us using the contact details set out in our Privacy Policy or on our website.