Terms of Service
Effective: March 27, 2017
The RailFX software product ("RailFX") provides website operators and other individuals with a variety of tools and resources (including our website) to enable them to create, launch, and manage proximity based mobile campaigns (the "Services").
Please read this Agreement carefully before proceeding with any use of our website or the Services. By using the Services, you accept and agree to be bound by this Agreement.
If you do not accept the terms and conditions of this Agreement, please exit this website and cease using the Services immediately.
Services and Support
- By posting updated versions of the Agreement on the RailFX website, or otherwise providing notice to you, RailFX may modify the terms of this Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the RailFX website. Your continued use of the Services will constitute your acceptance of the variation to the Agreement. RailFX will use reasonable efforts to make you aware of any changes to the terms of this Agreement. If you elect to discontinue using the Services due to any changes to the Agreement made under this section 1.1, you will be entitled to a refund for any unused, prepaid amounts for the Services.
- The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, your use of the Services is expressly prohibited.
- The Services enable corporate, small business and community mobile applications to develop and execute content and communications with visitors and others (including your customers).
- Both the number of Active Users and the number of Data Requests sent to our servers are metered by RailFX. "Active Users" are defined as any users of your mobile application whose device makes a call to our servers within a given calendar month. "Data Requests" are defined as any request to our servers that is triggered by your mobile application.
- All prices are subject to change at any time. All fees paid to RailFX for the Services are non-refundable, unless an account is terminated by you under clause 1.1 or by RailFX. Payment for Services must be made by a valid credit card accepted by RailFX, or a Direct Deposit to RailFX, unless other payment arrangements have been made between you and an authorised RailFX representative. You hereby authorise RailFX to charge your credit card on a monthly basis. Fees are payable in Australian (AUD) dollars. If RailFX is for any reason unable to effect automatic payment via your credit card, you will be notified via email. All prices are subject to change and you are responsible for reviewing the Pricing from time to time and for remaining aware of the fees charged by RailFX for the Services.
- For all accounts, RailFX may charge an account re-activation fee should an account need to be re-activated by a customer after an account has become de-activated due to non-payment, an untimely authorisation for payment, or any other breach of this Agreement.
- You must complete the registration form on the signup page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify an email address and password for your RailFX account. You are responsible for maintaining the security of your account, passwords, and files and for all uses of your account and of the Services in your name. RailFX reserves the right to refuse registration of, or cancel accounts it deems inappropriate.
- It is understood that RailFX makes no guarantee that messages will be rendered properly on all recipients' devices, due to the wide variety of devices available in the market. RailFX makes every reasonable attempt to make sure that all messages sent through our servers follow best practice standards, but we cannot guarantee that messages will look consistent across all devices due to the number of different devices available.
##Restrictions and Responsibilities
- This is an Agreement for the Services, and you are not granted a licence to any software under this Agreement (except to the extent required for you to use the Services). Except to the extent that applicable laws prevent RailFX from doing so, you will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software; reproduce or copy the Software or the Services or any part thereof; modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party without the prior written consent from RailFX, and only in accordance with this agreement. If you are using the Services in any country in the European Community or Australia, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs or the Australian Copyright Act 1968 (Cth).
- You acknowledge and agree that the Services, the Software, the RailFX company names and logos and all related product and service names, design marks and slogans, and all other material comprising the Software or the Services, are the property of RailFX or its affiliates or suppliers (collectively, the "Marks"). Unless stated otherwise, all Marks are protected as the copyright, trade dress, trademarks and/or other intellectual properties, are owned by RailFX or by other parties that have licensed their material to RailFX. You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of RailFX. Your use of the Services confers no title or ownership in the Services, the Software or the Marks and is not a sale of any rights in the Services, the Software or the Marks. All ownership rights remain in RailFX or its third party suppliers, as the case may be.
- You represent that you will use the Services only in compliance with this Agreement and all applicable laws (including but not limited to legislation and policies related to spamming, privacy, obscenity, or defamation). You hereby agree to indemnify and hold harmless RailFX against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable solicitors' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. You acknowledge that you are responsible for the content of any messages sent using the Services. Although RailFX has no obligation to monitor the content provided by you or your use of the Services, RailFX may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
- The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libellous, or in any way a violation of intellectual property laws or a third party's intellectual property rights.
- In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to RailFX. RailFX may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Services, or to communicate separately with you.
- RailFX will not use any of your user lists or any other customer information for any other purposes than those related to the Services. In addition, RailFX will not use your customer information for the purpose of sending unsolicited commercial messages.
- You acknowledge that we may store the personal information that you provide to us on servers located in Australia. You warrant that you have obtained the consent of the relevant individuals to the storage, handling and transmission of their personal information to and by RailFX as described.
- You must not use the Services to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or any other prohibited material.
- You must not use the Services to send campaigns that link to or display nudity, obscene content, gambling related content, pay day lender related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.
- You must not use the Services for the sending of unsolicited communications (sometimes called "spam").
- All rights not expressly granted are reserved.
- The Services may contain materials produced by third parties or links to other websites. Such materials and websites are provided by third parties and are not under RailFX's direct control and RailFX accepts no responsibility or liability in respect of any such third party materials or for the operation or content of other websites (whether or not linked to the Services). You acknowledge that RailFX is entitled to require you to remove any link from another website to the Services which you install without obtaining RailFX's prior written consent.
##General Refunds, Returns and Delivery Policy
- We agree to refund defective software products and the provisioning of incorrect file licenses if we have been notified within thirty (30) days of purchase.
- We agree to refund your subscription if you change your mind within seven (7) days of purchase.
- This policy is in addition to your statutory rights under the Trade Practices Act. For more information, please visit the Australian Department of Fair Trading website.
- We accept that if a product is wrongly described, different from a sample shown or doesn't do what it is supposed to do, you may choose between a replacement or a refund.
- You agree to provide a reason for requesting refunds including any details of the problem.
- We agree to issue a refund, once a request has been received and verified at our head office.
- You accept that we only have to refund the credit card used to pay for goods or services or the bank account we received payment from.
- You accept that refunds may take 10 days to process once approved by us.
- You agree to allow us to deduct fees and charges by banks and credit card companies we occur from the refund amount.
- You agree that refund for bulk purchases (i.e. 2 or more of the same product) will not be accepted.
- You agree to purchase one item or Service first to make an assessment prior to making bulk orders.
- We agree to provide access to software products within 24 hours of processing payment.
##Reselling and Subcontracting the Services
Reselling of the Services to third parties is permitted subject to the following conditions:
- Access to, and use of, the Services by a third party granted access by you ("Your Customer"):
(a) does not in any way diminish your strict obligation to ensure compliance with the terms of this Agreement; and
(b) does not in any way diminish RailFX's right to enforce the terms of this Agreement, without liability to you or the Customer, including suspension or termination of access to the Service, whether or not it may have an adverse impact on Your Customer or the ability of Your Customer to use the Services.
- You must:
(a) enter into a binding contractual relationship with Your Customer on terms no less onerous than this Agreement.
(c) in the event that Your Customer transfers personal data from the European Economic Area direct to the Servers, ensure that the Data Transfer Clauses form part of your contractual relationship with Your Customer; and
(d) provide all customer relationship management, including first level support services in relation to the Services, to Your Customer.
- You hereby agree to indemnify and hold harmless, on an actual indemnity basis, RailFX, from and against all costs, expenses, losses and liabilities arising in any way (including under statute, the law of tort, equity or any other theory of law whatsoever) from or in relation to use of the Services by Your Customer and all other acts and omissions of Your Customers otherwise taking place on or in relation to the Services.
- RailFX does not charge an additional fee for use of the Service by Your Customers. RailFX will deduct its standard fee.
- You may terminate this Agreement at any time by contacting us or by sending written notice to RailFX, Level 1, 47 Easey St Collingwood VIC 3066, Australia. Correspondence must include your first name, last name, and your RailFX email address. No refunds will be issued if you terminate this Agreement unless your account is in credit and you are terminating in accordance with this agreement.
- RailFX may terminate this Agreement or the Services at any time with or without cause, and with or without notice. RailFX shall have no liability to you or any third party because of such termination. If RailFX terminates this Agreement because you breached this Agreement or any applicable laws, no refund will be issued even if you have unused, prepaid amounts for Services under this Agreement.
- RailFX may delete any of your archived data within 30 days after the date of termination. Any statutory retention requirements with respect to your business correspondence remain your responsibility. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranties, disclaimers and limitations of liability.
- If you do not log into your account for more than 100 days, the account will become inactive. When an account is classified (at RailFX's sole discretion) as inactive, RailFX will flag that account as inactive. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM RailFX'S DATABASE.
##Warranties, Disclaimer and Remedies
- USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, RailFX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND TO THE EXTENT PERMITTED BY LAW RailFX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Your sole and exclusive remedy for any failure or non-performance of the Services shall be for RailFX to use commercially reasonable efforts to adjust or repair the Services, or where such adjustment or repair is not feasible, for RailFX to either (at its discretion) perform the Services again or provide you with a refund for the amount you actually paid to RailFX for the relevant Services.
##Limitation of Liability
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL RailFX OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "RailFX ") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA, OR FAILURE TO REALISE ANTICIPATED SAVINGS OR BENEFITS OR BUSINESS OPPORTUNITIES), OR FOR ANY CLAIM BY ANY OTHER PARTY.
- RailFX'S EXCLUSION OF LIABILITY APPLIES WHETHER THE CLAIM IS IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR EQUITY AND EVEN IF RailFX HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- YOU AGREE THAT RailFX'S LIABILITY TO YOU AT LAW WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH YOU CONTRIBUTED TO THE LOSS.
- IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, RailFX IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), TO THE FULLEST EXTENT PERMITTED BY LAW THE LIABILITY OF RailFX TO YOU WILL BE LIMITED 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 THE COST OF HAVING THE GOODS REPAIRED; AND
(B) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES.
##Export of Services or Technical Data
- You may not remove or export from Australia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of Australia and all other applicable countries.
- If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- RailFX and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
- No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind RailFX in any respect whatsoever.
- In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
- The Agreement shall be governed by the laws of the State of Victoria, Australia without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Melbourne, Victoria, Australia.
- The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded from this Agreement.
- It is understood that in order to use the Services, a modern browser such as Internet Explorer 10, Firefox 20, Safari 5 or Google Chrome 30 is required.
- Additionally, a stable connection to the Internet is required. The Services may work in a limited manner on other web browsers (such as earlier versions of the previously mentioned browsers), but the Services were not designed for use on web browsers other than those recommended above.
##Compliance rules for sending messages (and your spam indemnity)
- All RailFX customers must follow the rules of the Australian Spam Act 2003 (Cth) (and equivalent anti-spam legislation in all applicable countries).
##Email and Permission Practices
- You agree to import, access or otherwise use only permission-based data
- Messages that you send through the Services may generate abuse complaints from recipients. You are responsible for ensuring that your campaigns do not generate a number of abuse complaints in excess of industry norms. RailFX, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.
- RailFX, at its own discretion, may immediately disable your access to the Services without refund if RailFX believes in its sole discretion that you have violated any of the communications and permission practices listed above.
##Use of the Services
- You will not violate or attempt to violate the security of our website or the Services. You will not hack into the website, RailFX's computer systems or the computer systems of other users of the Services. Hacking means unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.
##Website and Services availability
- From time to time downtime, either scheduled or unscheduled, may occur. RailFX will work within reason to ensure this amount of downtime is limited. RailFX will not be held liable for the consequences of any downtime.
- RailFX cannot guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of all programs and files associated with the Services, and you release RailFX entirely of all responsibility for any consequences of its use.
- RailFX will not be liable by reason of the failure in the performance of obligations under this Agreement by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other natural disaster or cause which is beyond RailFX's reasonable control.
- The Services may be accessed throughout Australia and overseas. RailFX makes no representations that the Services comply with the laws (including intellectual property laws) of any country outside Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the site.