OUR SERVICES AND THE TERMS AND CONDITIONS OF THEIR USE
Gen3Media is a professional company that provides world class relationship marketing software (the platform) and services. gCastTM is made available to you by Gen3Media, with its principal offices at Suite 4, South Tower, L3/527 Gregory Terrace, Bowen Hills, Queensland, Australia (“Gen3Media”). This page contains the terms and conditions (“Terms and Conditions”) for all Gen3Media products – these include a SME version called gCast and a Corporate version which we call, gCast Affiliate for Enterprise (collectively these products are known as “Gen3Media Programs”).
By using gCast you agree to any published prices as described on http://www.gen3media.com/ or on the Proposal and Acceptance Form and to these Terms and Conditions. Gen3Media Programs are only available to business users. If you are implementing Gen3Media 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
Gen3Media provides gCast “as is” to clients as an internet based application. With the exception of planned maintenance and unforeseen system outages, Gen3Media will undertake to have the program available to clients at all times. Gen3Media 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, Gen3Media takes no responsibility for client’s inability to access the program due to internet or telephone provider failures. Gen3Media tests gCast in common internet browsers and attempts to cater for as many versions as possible. Different browsers may produce different results.
• Support Availability
Gen3Media client services is available on Queensland, Australia business days from 08:30 to 17:30 AEST via telephone and email. General support enquiries will be answered during the initial communication. Where further investigation or assistance is required, Gen3Media support staff will advise the client of the course of action to be taken. Gen3Media 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 Gen3Media with all relevant information in a timely manner.
• Additional Support Programs
Client support services is subject to fair use. Gen3Media expects that general client service support requirements will not exceed one hour per month. Clients who require additional support services can purchase it per hour as per the current ratecard. Support can be accessed to assist with campaign creation and delivery but cannot be used in place of technical work which is charged separately. Please see our SLA for further information.
Clients are also able to purchase support packages on a month to month basis.
• Additional Pricing Information
(a) All prices supplied are exclusive of GST and are subject to change without notice
(b) Database size is calculated based on number of email addresses
(c) SMS incurs additional cost and is charged per SMS sent
Your Business Use Only
Gen3Media 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 Gen3Media Programs including but not limited to selling or distributing Gen3Media Programs for payment, you must enter into a separate written agreement with Gen3Media (see Affiliate Program).
Gen3Media offers its Programs such as gCast on an “as is” basis. Through gCast, Gen3Media provides marketing tools, information, information management and storage and support. Users can create and send communication campaigns (e.g. email, SMS and Direct Mail) using the tools to distribute content supplied by gCast to the User. The User acknowledges that Gen3Media does not create any content other than the Pre-Written Promotional Copy Content and Generic HTML Templates and that Gen3Media is not the author or the publisher of any User campaigns. Gen3Media does note 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, the General Data Protection Regulation ((EU) 2016/679) (GDPR), or is otherwise deemed unacceptable.
If you are asked to register with any Gen3Media 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 contract. If for whatever reason you do not receive your monthly invoice, or where a problem arises from an invoice, you agree to contact Gen3Media 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 Gen3Media are subject to change without notice. Clients or their parent affiliate are solely responsible for notifying Gen3Media in writing where changes, upgrades or revisions to their account are warranted. Where applicable, we may request a signed document approving the change to account.
If you are using Gen3Media 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 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 expense 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.
Gen3Media does not sanction and has no control over the content sent in any gCast communication campaign. Gen3Media 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, Gen3Media 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 Gen3Media and additionally, their parent company. Gen3Media and the relevant parent company automatically gain the rights to reproduce, publish or distribute such creative at their sole discretion without notice. Gen3Media 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.
Gen3Media may at any time delete any content that, in the sole judgment of Gen3Media, violates this agreement including content that may be offensive, illegal, harm or threaten or violate the rights or the safety of any person. Gen3Media assumes no responsibility for supervising gCast services for unsuitable content or conduct. The clients and partners of Gen3Media are solely accountable for the content sent in any gCast communication campaign.
Gen3Media and related staff shall be released from any claims associated with any conduct committed in direct challenge to any of the above action.
Gen3Media reserves the right to investigate and take suitable legal action against anybody who, at Gen3Media’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 Gen3Media in its sole discretion) to be or to include material that:
(a) Is false or misleading
(b) 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
(c) Constitutes harassment or defamation of any person, business or organisation
(d) Contains an image of another entity without that entity’s prior written consent
(e) Exploits people of animals in a sexual or violent manner of contains nudity, or distasteful focus matter or contains a connection to an adult website
• Prohibited Actions
You as a client of Gen3Media may not (unless expressly permitted by Gen3Media in writing):
(a) Distribute Gen3Media Programs or any services of software associated with or derived from it, except as expressly permitted above in relation to Gen3Media Programs
(b) Sub-licence your right to use Gen3Media Programs
(c) Modify, copy, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or create derivative works from Gen3Media Programs or
(d) Extract significant portions of Gen3Media’s files or promotional material for use in other applications
You as a client of Gen3Media expressly agree and covenant not to engage in any Prohibited Activity when using Gen3Media services.
“Prohibited Activity” when using Gen3Media services includes, but is not restricted to:
(a) 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
(b) Attempts to obscure the advertisements if your applicable plan definition includes the provision of advertising on gCast’s emails
(c) Obtaining revenue from paid advertisements or product promotion, of any organisation, not previously approved in writing by Gen3Media in your campaigns, whether your plan definition includes the provision of advertising or not.
Clients paying an Ad Supported program cost must not obscure, tamper with, remove or prevent advertisements from running as intended by Gen3Media. Should advertisements not run as intended due to client interference, Gen3Media reserves the right to see compensation for lost revenue.
Clients are provided the opportunity to opt out of advertisements which may be directly competitive to their business. Advertisements which are directly competitive, as deemed by Gen3Media, are not able to be opted out of.
Due to the subsidised program cost of 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:
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 Gen3Media) an introductory campaign to members including an “Update your Details” component to gather additional member information.
Update your Details must include the following minimum demographics to be collected: DOB, gender postcode, given name, email address. All campaigns sent will include a prominent “Update your Details” link to encourage members to update and provide additional information as above. All campaigns sent will include a prominent “Refer a Friend” link to encourage database growth. 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. HTML template width will not exceed 650 pixels. Minimum of 2 active Set and Forget email campaigns at any time (e.g. Birthday wishes and a welcome email for new member registrations).
Gen3Media constantly strives to improve all its Programs. Consequently, from time to time we will release new features and update existing features. Gen3Media reserves all rights in relation to such new releases and updates.
Gen3Media complies with the GDPR and all secondary legislation in respect to the services that it provides as a data processor. In particular, Gen3Media:
(a) processes the personal data only on documented instructions from the you including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which Gen3Media is subject; in such a case, Gen3Media shall inform you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest
(b) ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality
(c) takes all measures required pursuant to Article 32 of the GDPR
(d) respects the conditions referred to in paragraphs 2 and 4 of the GDPR for engaging another processor
(e) taking into account the nature of the processing of personal data, assists you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR
(f) assists you in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to Gen3Media
(g) at your choice, deletes or returns all the personal data to you after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data
(h) makes available to you all information necessary to demonstrate compliance with the obligations laid down in this Article 28 and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you
You agree to indemnify and to keep indemnified Gen3Media against all costs, losses, claims, damages, expenses or any other liability (including reasonable professional fees) incurred by Gen3Media (or for which Gen3Media may become liable) due to any failure by you or your employees, subcontractors or agents to comply with any obligations under the Australian Privacy Act, the GDPR or any secondary legislation that applies to you.
You acknowledge that Gen3Media owns all rights, titles and interests in and to 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 Gen3Media’s copyright notice, trade marks, or other propriety rights notices affixed to or contained within or accessed in conjunction with or through gCast.
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 Gen3Media permission to use and incorporate your ideas or comments into gCast or any future Gen3Media products or offerings without further compensation.
Changes To Terms And Conditions
Gen3Media may update these Terms and Conditions from time to time. If Gen3Media 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 Gen3Media 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 Gen3Media 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 Gen3Media material.
Termination By Gen3Media
Without prejudice to any other rights, Gen3Media 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. Gen3Media 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 Gen3Media material.
To the fullest extent permitted by law, gCast is provided “as is”.
To the fullest extent permitted by law, Gen3Media disclaims all implied warranties, conditions and others 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:
(a) Death or personal injury resulting from the negligence of either party or their servants, agents or employees
(b) Fraud or fraudulent misrepresentation
(c) Breach of any implied condition as to title or quiet enjoyment
(d) 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:
(a) Any economic losses (including, without limitation, loss of revenues, profits, contracts, data, business, anticipated savings)
(b) The cost of obtaining similar or substitute services from anyone
(c) Any loss of goodwill or reputation or
(d) 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, Gen3Media’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 Gen3Media 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.
These Terms and Conditions will be governed by and construed in accordance with the laws of Queensland, Australia and you and Gen3Media 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 Gen3Media 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.
Gen3Media 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 Gen3Media. You acknowledge that Gen3Media, 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 Gen3Media 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 Gen3Media and/or a third party who makes its software and/or content available in conjunction with or through Gen3Media.
These Terms and Conditions are valid as of 25 May 2018.