Term of Service
Last Updated: 15 October 2022
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1.1 Your use of Eptimize App Service is governed by this agreement (the “Terms”). “Eptimize” means Smallize Pty Ltd, located at Suite 163, 79 Longueville Road, Lane Cove, NSW, 2066, Australia, and its subsidiaries or affiliates involved in providing the Eptimize App Service. The “Services” means the services Eptimize makes available through this website, including this website, the conversion service, any Eptimize Add-ons, and any other software or services offered by Eptimize in connection to any of those. The “User” means yourself, the individual or company who uses our Service to create Applications.
1.2 Eptimize Apps or “Service” are the publicly available online apps at https://www.eptimize.com, desktop apps and mobile apps authored by us. In order to use this you must first agree to the Terms. You can agree to the Terms by using the service. You understand and agree that Eptimize will treat your use of any of the apps as acceptance of the Terms from that point onwards.
1.3 You may not use any of the apps if you are a person barred from receiving the service under the laws of Australia or other jurisdictions, including the country in which you are resident or which you use the service. You affirm that you are over the age of 13, as this service is not intended for children under 13.
1.4 You agree your purchases of the service if offered are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Eptimize or any of its affiliates regarding future functionality or features.
2.1 For apps on the website you must provide accurate and complete registration information any time you register to use the service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Eptimize immediately.
2.2 Your use of the service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the service by any means other than through the interface that is provided by Eptimize, unless you have been specifically allowed to do so in a separate agreement with Eptimize, or (b) engage in any activity that interferes with or disrupts the service (or the servers and networks which are connected to the Service).
2.4 For web users Eptimize provides you with the ability to review, correct and delete any of the Personal Information that you have provided to us via the dashboard. We may limit or deny access to your Personal Information where providing such access would be unreasonably burdensome or expensive in the circumstances, or as otherwise permitted by applicable laws or regulations.
2.5 Abuse or excessively frequent requests to the service may result in the temporary or permanent suspension of your account’s access to the service. Eptimize, at its sole discretion, will determine abuse or excessive usage of the service. The Company will make a reasonable attempt via email to warn the account owner prior to suspension. Repeated exceeding of the usage limits may lead to termination of your account.
2.6 You may not access the service for the purpose of bringing an intellectual property infringement claim against Eptimize or for the purpose of creating a product or service competitive with the service. You must not copy or integrate the service with any other software or service which enables access to or relies upon the Eptimize to read or convert files.
2.7 Eptimize processes your Personal Information in ways compatible with the purpose for which it was collected or subsequently authorized by you, the individual. To the extent necessary for such purposes, we take reasonable steps to make sure that your Personal Information is accurate, complete, current and otherwise reliable with regard to its intended use.
2.8 Eptimize may collect from you at your discretion and only when authorized by you, your password to third party accounts with the purpose of linking these accounts in Eptimize App. Any such password is used only in accordance with the intended use that is explained before the password is requested from you. Any password you provide is secured in line with our security policies and is not stored on Eptimize servers.
We may employ procedural and technological measures, consistent with industry practice. Such measures are reasonably designed to help protect your Personal Information from loss, unauthorized access, disclosure, alteration or destruction. We may use encryption, secure socket layer, firewalls, internal restrictions, password protection and other security measures to help prevent unauthorized access to your Personal Information.
2.9 You may only use Templates and derivative works from Templates in accordance with sections 7.3 and 7.4 of the Terms.
3.1 You agree to comply with the Eptimize Acceptable Use Policy available at acceptable use policy (the “Acceptable Use Policy”) which is incorporated herein by this reference and which may be updated from time to time.
3.3 You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users.
4.1 Subject to the Terms, the service is provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services will be provided by Eptimize if its required.
4.2 For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in Eptimize fees and payment policies, if different. Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Eptimize’s measurements of your use of the Service, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Eptimize. Nothing in these Terms obligates Eptimize to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Eptimize may be shared by Eptimize with companies who work on Eptimize’s behalf, such as payment processors and/or credit agencies, solely for the purposes of effecting payment to Eptimize and servicing your account. Eptimize shall not be liable for any use or disclosure of such information by such third parties. Eptimize reserves the right to discontinue the provision of the Service to you for any late payments.
4.3 We reserve the right to change the structure of our pricing plan or introduce other plans at any time without further notice. Where possible we will attempt to “grandfather” these plans so you can stay on the plan you are on and so you are not affected by any major changes however this is not guaranteed. Eptimize may change its fees and payment policies for the Service by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website or newsletter (or such other URL Eptimize may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
4.4 You may not develop multiple Applications to simulate or act as a single Application or otherwise access the service in a manner intended to avoid incurring fees.
5.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the service are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.”
5.2 Eptimize reserves the right (but shall have no obligation) to remove any or all Content from the service. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from Eptimize. In the event that you elect not to comply with a request from Eptimize to take down certain Content, Eptimize reserves the right to directly take down such Content or to disable Applications.
5.3 In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user’s account on your Application. Eptimize reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
5.4 You agree that you are solely responsible for (and that Eptimize has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the service and for the consequences of your actions (including any loss or damage which Eptimize may suffer) by doing so.
5.5 YOU CLAIM THAT YOU OWN OR HAVE OBTAINED THE RELEVANT RIGHTS CONCERNING ANY FILE OR OTHER MATERIALS YOU UPLOAD TO THE SERVICES. You agree not violate the rights of third parties, particularly copyright and ancillary copyright, trademark, patent and other property and personal rights.
Eptimize does not analyze the content of uploaded files and is not responsible for its Services misuse nor copyright infringements which may affect third parties. You will be solely responsible for any penalty, sanction, and/or fine which the courts or other competent authorities could issue against Eptimize due to noncompliance with any part of these Terms.
5.6 You agree that Eptimize has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
6.1 If, at any time, we record a decline, chargeback or other rejection of a charge of any payable Fees on your account (“Chargeback”), this will be considered as a breach of your payment obligations hereunder, and your use of the service may be automatically disabled or terminated.
6.2 In the event a Chargeback is performed, your User Account may be blocked without the option to re-purchase or re-use it, and any data contained in such User Account, including any domains, applications and Third Party Services may be subject to cancellation.
6.3 Your use of the service will not resume until you re-subscribe for any such Services, and pay any applicable Fees in full. If you have any questions or concerns regarding a payment made to Eptimize, we encourage you to first contact our Sales team before filing a Chargeback or reversal of payment, in order to prevent the repercussions described above.
6.4 We reserve our right to dispute any Chargeback received, including by providing the relevant credit card company or financial institution with any information and documentation proving that the User responsible for such Chargeback did in fact authorize the transaction and make use of the services rendered thereafter.
7.1 You acknowledge and agree that Eptimize (or Eptimize’s licensors) own all legal right, title and interest in and to the service including any intellectual property rights which subsist in the service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
7.2 Except as provided in Section 9, Eptimize acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the service , including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Eptimize, you agree that you are responsible for protecting and enforcing those rights and that Eptimize has no obligation to do so on your behalf.
7.3 Eptimize may provide “Templates” which incorporate additional content (including, without limitation, text, images, animations, graphics, logos, trademarks, icons, buttons, pictures, videos, sound recordings, etc.) for use with the Service. All Templates and their contents are owned by Eptimize. You may create derivative works from the Templates through the Service, provided that such works are not intended to be re-sold or published publicly for free distribution in an editable format. You may use derivative works for presentations, as long as you are the owner of the presentation.
7.4 You may not a) sublicense, sell or rent any Templates or modified versions of them, b) offer Templates or modified versions of them for download, or c) acquire the copyright of any Templates, whether or not for payment or other consideration.
8.1 Eptimize gives you a limited, personal, commercial, non-exclusive, non-sublicensable, non-assignable license to use the service as provided to you by Eptimize. This license is for the sole purpose of enabling you to use and enjoy the benefit of the service as provided by Eptimize, in the manner permitted by the Terms.
8.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the service either online or in app form or (b) attempt to disable or circumvent any security mechanisms used by the website or app or any applications running on the service.
8.3 You may not develop software using service that offer remarkably similar or competing functionality as the service, or directly expose features of the service through an API for use by an unlicensed third party for any development platform, including but not limited to .NET, Java, SQL Reporting Services, JasperReports, SharePoint, Microsoft Dynamics, Microsoft Azure, Amazon Web Services (“AWS”), SalesForce.com, Google App Engine or any other PaaS (Platform as a Service) providers without prior written approval from Eptimize.
8.4 Any and all IP Rights in the service, mobile apps or the website or any accompanying online documentation or promotional Materials are and shall remain the exclusive property of Eptimize and/or its licensors. Nothing in the Terms intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in the Terms. You will not take any action to jeopardize, limit or interfere with Eptimize’s IP Rights. Any unauthorized use of Eptimize’s IP Rights is a violation of the agreement defined by the Terms as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws. All title and IP Rights in and to any third party content that is not contained in the service, but may be accessed through use of it, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
8.5 The name “Eptimize” must not be used to endorse or promote products derived from the Product without prior written permission. For written permission, please contact firstname.lastname@example.org.
9.1 Eptimize claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the service you give Eptimize a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Eptimize to provide you with the service . Furthermore, by creating an Application through use of the service , you give Eptimize a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Eptimize to provide you with the service.
9.2 By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Service functionality or features for the sole purpose of collaborating on development of the Application(s).
9.3 You may choose to or we may invite you to submit comments or ideas about the service, including without limitation about how to improve the service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Eptimize under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
9.4 You agree that Eptimize, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the service.
10.1 The security procedures and measures Eptimize users is publicly available at security practices which is incorporated herein by this reference and which may be updated from time to time.
10.2 Protection of User Data. Eptimize will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of User Data as described in 10.1. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of User Data by Eptimize personnel except (a) to provide the Service and prevent or address service or technical problems, (b) as compelled by law in accordance, or (c) as a User or User expressly permit in writing.
The web services are performed using equipment or facilities located in the United States. Eptimize’s US service providers are either Privacy Shield compliant or have executed Standard Contractual Clauses (as approved by the European Commission). This provides legal grounds for assuring that, when processed in the United States, the personal data of EU citizens that are processed by Eptimize customers when using the Service will receive from Eptimize and its service providers located outside the EU an adequate level of protection within the meaning of Article 46 of Regulation (EU) 2016/679 (General Data Protection Regulation).
By agreeing to these Terms, the User grants Eptimize a general authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679 to engage processors for the purposes of providing the Service. The list of processors Eptimize uses is publicly available at subprocessors. Eptimize will inform the User of changes in such processors in accordance with the procedure of modifying these Terms as stipulated in Section 18 of these Terms.
For the purposes of Article 28 of Regulation (EU) 2016/679, these Terms constitute the data processing contract between the User as the data controller and the Eptimize as the data processor. The User hereby instructs Eptimize to process the data as described in these Terms.
11.1 Subject matter and nature of processing. Eptimize provides the Platform where the User, as the data controller, can collect, store and organize the personal data of data subjects determined by the User. The Platform has been designed to work as a facility to convert and manipulate various document formats, to the extent not regulated by these Terms, the User decides how they use the Platform.
11.2 Duration. Eptimize will process data on behalf of the User until the termination of the Service in accordance with Section 11 of these terms. Upon termination, Eptimize will store the User’s data for a period of 7 days, should the User wish to reopen the Account to resume the use of the Eptimize’s Service or to export data, unless instructed otherwise by the User. Eptimize deletes or returns all the personal data to the controller 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.
11.3 Parties’ rights and obligations. The User’s rights and obligations regarding User Data are provided in these Terms. Eptimize ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Eptimize takes all measures required pursuant to Article 32 of Regulation (EU) 2016/679 and we undertake to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the User as the data controller.
11.4 Unlawful Client Data. Eptimize is not obliged to pre-screen, monitor or filter any User Data or acts of its processing by the User in order to discover any unlawful nature therein. However, if such unlawful User Data or the action of its unlawful processing is discovered or brought to the attention of Eptimize or if there is reason to believe that certain User Data is unlawful, we have the right to:
- notify the User of such unlawful User Data;
- deny its publication on the Web Site or its insertion to the System;
- demand that the User bring the unlawful User Data into compliance with these Terms and applicable law;
- temporarily or permanently remove the unlawful User Data from the Web Site or Account, restrict access to it or delete it.
If Eptimize is presented convincing evidence that the User Data is not unlawful, we may, at our sole discretion, restore such User Data, which was removed from the Web Site or Account or access to which was restricted.
In addition, in the event Eptimize believes in its sole discretion User Data violates applicable laws, rules or regulations or these Terms, Supplier may (but has no obligation), to remove such User Data at any time with or without notice.
Without limiting the generality of the preceding sentence, Eptimize complies with the Digital Millennium Copyright Act, and will remove User Data from the Platform upon receipt of a compliant takedown notice.
Eptimize as the data processor will assist the User as the data controller in meeting the User’s obligations under Regulation (EU) 2016/679, providing subject access, and allowing data subjects to exercise their rights under Regulation (EU) 2016/679.
12.1 Eptimize is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the service which Eptimize provides may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the service will be effective with respect to all versions of the service ; examples of changes to the form and nature of the service include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
12.2 You may terminate these Terms at any time by cancelling your account on the Eptimize App website or by discontinuing use of the website. You will not receive any refunds if you cancel your account.
12.3 You agree that Eptimize, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the service may be without prior notice, and you agree that Eptimize will not be liable to you or any third party for such termination.
12.4 You are solely responsible for exporting your Content and Application(s) from the service prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
12.5 Eptimize reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the Service (or any part thereof) with or without notice.
12.6 If for any reason the service is discontinued or removed from the web/app store we will provide the following remedy to valid subscribers:
a. The Company will announce service discontinuation through its monthly customer newsletter, which is also available at the Eptimize Website for the general public. It is your responsibility to check the newsletter contents for notice of service discontinuation.
b. Email notice will be given at least fifteen (15) days prior to the discontinuation of the service, and you will be provided with technical support for the remainder of your subscription.
c. If for any reason, including insolvency or dissolution, Eptimize is unable to remain in business they will provide the following remedy to each customer: Eptimize will make a reasonable effort to notify you, by email at least thirty (30) days prior to close of business.
12.7 Upon any termination of the service or your account these Terms will also terminate, but Sections 7.1, 12, 13, 14, 15, and 19 shall continue to be effective after these Terms are terminated.
13.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE EPTIMIZE SERVICE IS AT YOUR SOLE RISK AND SERVICES AUTHORED BY EPTIMIZE ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
13.2 EPTIMIZE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EPTIMIZE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.
13.3 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF FIRST DELIVERY OF THE SERVICE.
13.4 If you report a breach of warranty to Eptimize then Eptimize will use reasonable commercial efforts to supply You with a version of the service that substantially conforms to the documentation, or refund to you the fees you paid for the service for up to a maximum of the last thirty (30) days at its option. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCT.
14.1 NEITHER EPTIMIZE NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PRODUCT AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF EPTIMIZE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14.2 EPTIMIZE’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES, FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICE THAT CAUSED SUCH DAMAGE FOR A MAXIMUM PERIOD OF 6 MONTHS.
14.3 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
14.4 Force Majeure. Eptimize is not liable hereunder by reasons of failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, government action, labor conditions, or any other cause which is beyond its control.
15.1 You agree to hold Eptimize harmless against, and at Your expense handle and defend, any claim and defend any third party suit brought against You arising from or related to your user content, use of the Services, or violation of any of these Terms. You shall pay all damages and costs awarded in such suit.
16.1 You agree to comply with the terms of the Copyright Notice available on the website at copyright notice. which is incorporated herein by this reference and which may be updated from time to time.
17.1 The service or website may include hyperlinks to other web sites or content or resources or email content. Eptimize may have no control over any web sites or resources which are provided by companies or persons other than Eptimize.
17.2 You acknowledge and agree that Eptimize is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
17.3 You acknowledge and agree that Eptimize is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
18.1 Eptimize reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time. Such changes will be posted on our website at http://www.eptimize.com. You are bound by the Terms as it is posted or distributed at the most recent time you use the service. If You do not wish to be bound by the terms of this license agreement You should cease to use the service by terminating your account. Please check these Terms periodically for changes.
19.1 The Terms constitute the whole legal agreement between you and Eptimize and govern your use of the service (but excluding any services which Eptimize may provide to you under a separate written agreement), and completely replace any prior agreements between you and Eptimize in relation to the service .
19.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
19.3 If Eptimize provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
19.4 You agree that Eptimize may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the service. By providing Eptimize your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
19.5 You agree that if Eptimize does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Eptimize has the benefit of under any applicable law), this will not be taken to be a formal waiver of Eptimize’s rights and that those rights or remedies will still be available to Eptimize.
19.6 Eptimize shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
19.7 The Terms, and your relationship with Eptimize under the Terms, shall be governed by the laws of the State of New South Wales, Australia and shall be governed and interpreted according to the laws of New South Wales, Australia. Any lawsuit filed regarding this agreement shall be filed in New South Wales, Australia. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement.
19.8 Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the service upon written notice to the assigning party.
EPTIMIZE AND THE CUSTOMER HAVE EACH READ AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND HAVE CAUSED THIS AGREEMENT TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES.