Terms of Service
“Agreement” means these terms of service and any additional matters agreed in writing between the parties;
“Australian Consumer Law” means Schedules 1 and 2 of the Competition and Consumer Act 2010 (Cth) and any other relevant provisions contained in that Act, as varied from time to time by act or regulations;
“Client” refers to the person, partnership, corporation, trust or other entity whom we are supplying the Services. The reference to Client includes any of the Client’s employees, agents and contractors;
“Client Data” means all data and material that is provided by the Client and uploaded to the Service or otherwise used in respect of the receipt of the Service by the Client;
“Consequential Loss” includes (but is not limited to) loss of revenue, loss of profits, loss of anticipated savings or business, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any form of consequential, special, indirect, punitive or exemplary loss or damages, however it arises (including as a result of negligence);
“Collection Expenses” means any legal and/or other expenses incurred by us, including debt collection agency expenses, in obtaining or attempting to obtain payment of amounts due by the Client to us;
“Confidential Information” means all information (whether in written, electronic or other form) concerning or in any way connected with us or the Client, and their respective businesses, services, products (including without limitation the Service), customers, property or affairs and which is disclosed to either us or the Client by the other party, but does not include information which is generally publicly available (other than as a result of a breach of this Agreement);
“Consumer” has the same meaning as in the Australian Consumer Law;
“Intellectual Property” means all other intellectual property rights conferred by law (whether registered or unregistered) including:
(a) business names;
(b) trade or service marks;
(c) patents, patent applications, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, data bases, know how, production methodologies, logos, designs, design rights, copyright or similar industrial or intellectual property rights;
(d) moral rights; and
(e) any improvements, developments, modifications or inventions in relation to such Intellectual Property.
“Loss” means any liability, however it arises (including as a result of negligence) and includes any loss, claim, damage, demand, injury or death and a fine or penalty imposed by a statutory or other authority;
“Price List” means the document provided by us to the Client outlining important information concerning the supply of the Services, but not limited to, a description of the Services, charge rates, additional associated charges, the address for supply of the Services, or in the event that there is no such document the oral terms agreed between the Client and us for the supply of Services.
“Representative” means a person nominated by us;
“Service” means cloud hosting services, or any other services provided by us;
“We/Us/Our” means Cloud Networks Australia Pty Ltd ABN 37 153 860 247.
2.1. Use of the Service and/or agreeing to pay and/or payment made for the provision of the Service, shall constitute acceptance of this Agreement by the Client.
2.2. In consideration for the Service, the Client agrees to provide current, complete, and accurate information about itself as requested, furthermore, the Client agrees to maintain these details current, complete and accurate.
2.3. Changes to the Client’s details must be notified by email to firstname.lastname@example.org.
3. Changes to the Agreement
3.1. We reserve the right to change the Agreement without prior notification.
3.2. In an instance of billing changes, the Client will be notified at least 14 days prior to the billing change and provided the right to cancel their account should the change be an unacceptable to the Client.
4. Acceptable Use
4.1. The Client agrees not to take part of (in any manner) or be involved in the transmission, distribution or storage of any material (data) using their hosting space and account which violates Australian Law, International Law, their home law, and United States Laws.
4.2. Such materials could be, but are not limited to SPAM (as defined in the Spam Act 2003 (Cth) or otherwise in the Client’s jurisdiction), offensive material, material which Cloud Networks deems may pose a risk to the safety and reliability of the Cloud Networks environment.
4.3. The Client may not use the Service for ‘warez’, pornography, hatred, scams, hacking, fraudulent or illegal activity, or for any materials which maybe be deemed unacceptable to the general community. What constitutes unacceptable content is solely at our discretion.
4.4. The Client is ultimately responsible for their actions over our network, and will be liable for all breaches of this Agreement, and any breach of trademarks or copyright.
4.5. The Client is solely responsible for all content stored on and served through their account and use of the Service. Being unaware of the data stored on the Client’s server does not exclude the Client from the Client’s responsibilities as stated above.
5.1. Hosting services provided are on an “as is” basis and the Client agrees that the use of the Service is solely at their own risk.
5.2. Responsibility for the security and durability of the Client’s content stored on the Cloud Networks environment is the Client’s responsibility. We will use all reasonable endeavors to ensure a stable and secure cloud environment for all clients, but we assume no responsibility in the maintenance and security of the content stored by any individual client.
5.3. Cloud Networks cannot guarantee against an attempted (or successful) security compromise on the Client’s cloud Service. The Client’s Service is protected to the best of our ability by incorporating the use of backup systems, firewalls, intrusion prevention systems and the provision of disaster prevention and recovery systems.
6. Cloud Service
6.1. Internet Protocol (“IP”) addresses assigned to the Client’s account, to be used with the Service, belong to us. The Client shall have no right to use IP address except as permitted by us in connection with the Service and during the term of this Agreement.
6.2. We shall maintain and control ownership of all IP addresses that may be assigned to Client and we reserve the right to change or remove any and all such IP addresses, in our sole and absolute discretion. Violations of systems or network security are prohibited, and may result in criminal and civil liability. We may investigate incidents involving such violations and may involve and will cooperate with law enforcement authorities if a criminal violation is suspected.
6.3. Violators of this policy are responsible for, but not limited to, the cost of labour to clean up and correct any damage done to the operation of the server(s) or network and business operations supported by the server or network. Such labour is categorised as an emergency security breach and recovery and is charged at $500AUD plus GST per hour, calculated hourly.
6.4. Examples of system or network security violations include, but not limited to the following:
6.4.1. unauthorised access to or use of data, systems or networks;
6.4.2. probe, scan or test the vulnerability of a system; or network; or to breach security; or authentication measures without express authorisation of the owner of the system or network;
6.4.3. unauthorised monitoring of data or traffic on any network or system without express authorisation of the owner of the system or network;
6.4.4. interfering with the Service;
6.4.5. forging of any TCP-IP packet header or any part of the header information in an email.
6.5. In the event of a system failure for whatever reason, we are not responsible for any damages or consequential losses and/or injury incurred. Whilst we will use reasonable care to ensure the security of our systems, we accept no responsibility for loss of data or service outage. We do not allow IRC activities on our servers or network. IRC and related activities will result in immediate Service termination.
7. Reliability and Server Uptime
7.1. Subject to clause 14, we aim to provide, but do not guarantee continuous or fault free Service and Server availability.
7.2. In cases where the Services are unavailable, an adjustment (as determined by Cloud Networks acting reasonably) in the usage fee will be made except where the unavailability is due to third party interference.
7.3. Third party interferences are defined for the purposes of this Agreement as including, but not limited to, DNS propagation, the Client’s Internet Service Provider, the Client’s computer equipment, natural disasters and third party programs installed (“Third Party Interference”).
7.4. In the event of a Third Party Interference being responsible for any Service unavailability the Client acknowledges they have no right to a proportionate refund.
8.1. Cloud Networks produces daily and monthly backups of each client’s data. These backups are stored in the Cloud Networks primary data centre and mirrored offsite to a second data centre which is in a different geographical location.
8.2. The Client acknowledges that these backups are provided as a benefit to them and we do not guarantee 100% data integrity.
8.3. The Client agrees that we are not responsible for any data loss in any event. Backups are required for quality of service and we are unable to delete and/or return backup data and this service may not be disabled.
9.1. Cloud Networks acknowledges that the Client has a right to reasonable support, including willful help, assistance and resolution in relation to a cloud problem. However, the Client agrees that Cloud Networks is not responsible for providing support for third party software and client computer problems.
9.2. Cloud Networks will use all reasonable endeavors to provide error free hosting and resolve any problem on Cloud Networks’ server or third party server being utilised as part of the Service.
9.3. Cloud Networks is not liable for security breaches related to the use of SSL, TLS or any other encryption method. Cloud Networks is not responsible for other security breaches related to brute force attacks, password cracking or any other method of intrusion which is out of the control of Cloud Networks.
9.4. The Client is responsible for maintaining the privacy of their account details including username and password.
9.5. The Client acknowledges if a support request is unreasonable or the problem is on the Client’s computer or related to their Internet Service Provider or another Third Party, Cloud Networks has the right to refuse providing support.
9.6. Support is provided by E-Mail and Support Tickets as outlined in the client’s individual contract. Telephone support is provided. Support provided is limited to the Client and the Client’s staff only.
10. Changes to Service
10.1. If the Service provided by Cloud Networks is to relocate, undergo upgrades or maintenance, change connection or any other physical or digital change to improve the Client’s service, the Client will not hold the host responsible for any down-time incurred as a result.
10.2. Down-time is actively kept to a minimum of less than 1% per year.
10.3. Cloud Networks will notify all its clients of scheduled outages to service at least 12 hours before the outage occurs.
11. Charges, Billing and Payment
11.1. In consideration for the provision of the Services by us, the Client must pay the charges to us.
11.2. The charges for the Service are set out in our Price List.
11.3. The Client must pay all charges for the Service in accordance with the terms and conditions of the Price List and this Agreement and if the Client is in breach of the payment terms the Client agrees that we can recover Collection Expenses.
11.4. The Client acknowledges that their non-use, or minimal use, of the Service does not in itself constitute a right to a full or partial refund of fees.
11.5. We may charge the Client an additional amount to service, modify, repair or replace the Service or any equipment used in connection with the Service, as a result of:
11.5.1. A breach by the Client of this Agreement;
11.5.2. A negligent or fraudulent act or omission by the Client;
and we will provide you with details of the additional amount prior to commencing the service repair or replacement.
11.6. The Client acknowledges that any non-processing of their payment, including but not limited to, dishonoured cheques, refer to drawer notices or insufficient funds notices, may incur a $20.00 administration fee payable to us.
11.7. We reserve the right to vary the rates and charges at any time without notice. Any changes will affect only renewals and not existing accounts already paid for.
11.8. If payment is overdue, we may charge the Client interest at our banker’s highest current overdraft interest rate from the date of default until we receive payment or this agreement is terminated.
11.9. In addition, if payment is overdue we may cancel or suspend delivery of Services yet to be delivered to the Client.
11.10. The Client may not deduct from the price any set off, counter claim or other sum unless we agree in writing.
12.1. Unless otherwise specified in the Price List, we will invoice the Client as follows:
12.1.1. if the charges are for ongoing Service, invoiced monthly in advance;
12.1.2. if the charges are calculated on a time and materials basis, invoiced monthly in arrears; and
12.1.3. if the charges are calculated in accordance with a fixed price agreed between the parties, then in accordance with the agreed payment schedule.
12.2. The parties acknowledge and agree that:
12.2.1. we will provide a tax invoice for each required payment before payment of the relevant amount is required. Each tax invoice will be accompanied by supporting information and details of the charges;
12.2.2. all amounts are exclusive of GST unless otherwise stated; and
12.2.3. subject to anything contrary in the Price List, the due date for payment of any charges is 7 days after the date of the relevant tax invoice.
13. Account Suspension
13.1. The Client agrees that bandwidth and disk usage shall not exceed the number of megabytes allocated per calendar month for the cloud service package ordered. We will monitor the Client’s bandwidth and disk usage.
13.2. The Client agrees to make payment of outstanding fees within the payment terms specified. Failure to make payment may result in suspension of the Services until outstanding fees are paid.
14. Our Liability
14.1. We make no express warranties to the Client except those expressly set out in this Agreement.
14.2. Cloud Network’s Services are subject to certain guarantees (“Consumer Guarantees”) that (in most circumstances) cannot be excluded under the ACL. We do not exclude or limit the application of any provision of any statute (including the Competition and Consumer Act 2010) (“C&C Act”) to the extent that doing so would contravene that statute or cause any part of this Agreement to be void.
14.3. Subject to clause 14.2 we exclude:
14.3.1. from this Agreement all conditions, warranties, guarantees and terms implied by statute or general law or custom except any implied condition or warranty the exclusion of which would contravene any statute or cause this Agreement to be void (“Non Excludable Guarantee”); and
14.3.2. all liability to the Client in contract for consequential or indirect damages arising out of or in connection with this Agreement even if we were aware they were possible or they were otherwise foreseeable including, without limitation, lost profits and damages suffered as a result of claims by any third person such as one of your customers.
14.4. Our liability to the Client for breach of any express provision of this Agreement or any Non Excludable Guarantee (except a Non Excludable Guarantee implied by sections 51, 52 and 53 of Schedule 2 to the C&C Act) is limited at our option to supplying again the Services in respect of which the breach occurred.
14.5. On request by the Client we will refund any amount paid by the Client for the Supplies in respect of which the breach occurred, rather than provide the remedy referred to above.
14.6. If you are a Consumer, we do not exclude liability to you for breach of any Non Excludable Guarantee in respect of goods or services ordinarily acquired for personal, domestic or household use and consumption.
14.7. The Client warrants that the Client has not relied on any representation made by us which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by us.
14.8. The Client acknowledges that to the extent we have made any representation which is not otherwise expressly stated in this Agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.
14.9. Refund requests made in the duration of the first week of the account’s activation will be provided in full provided that the hosting services are unused. Unused is defined for the purposes of this Agreement as no use of Email, web server, FTP or any other services.
15. Client’s Responsibilities
15.1. It is the Client’s responsibility to ascertain the full cost of using the Service, including but not limited to, carrier charges, internet access charges, etc. Although we may provide advice regarding other charges, it is the client’s responsibility to confirm this advice by contacting the provider directly.
15.2. The Client (or persons acting on behalf of the Client) is not permitted to use the Service for any activities that are of an illegal or fraudulent nature, such as any activities prohibited under the laws of Australia or the United States of America.
15.3. We are concerned about the privacy of on-line communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, such as regular mail, facsimile, and telephone, all of which can be intercepted and otherwise compromised.
15.4. As a matter of prudence, we urge our clients to assume that all of their on-line communications are insecure. We cannot and will not take responsibility for the security of information transmitted over our servers and network.
15.5. The Client is responsible for protecting and securing the Client’s password and for any authorised or unauthorised use of the Client’s password. The client shall not use or permit anyone to use the Service to access other accounts, systems or networks without authorisation. We will fully cooperate with law enforcement authorities in the detection and prosecution of illegal activities.
15.6. The Client’s account my incur download charges and service interruption as a result of investigation. The Client is responsible for any download quota used and any service outages as a result of this.
15.7. Bulk mailing is prohibited on our hosting services. Clients using mailing list software to send bulk mail are in breach of this agreement immediately and will have their account terminated without backup.
15.8. We take a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply, this means that Client may not use or permit others to use our network to transact in SPAM. Clients may not host, or permit hosting of, sites or information that is advertised by UCE from other networks.
15.9. First violations of this policy will result in an administration and investigation fee of $500 being charged to the Client’s account. The Client’s account will also be reviewed for possible termination.
15.10. If as a result of the misuse of the Client’s Service, Cloud Networks IP address/es are blocked, the Client may incur charges due to IP migration and will affect every other client using that shared services. Those clients affected will be given your lawyer’s contact details and may choose to pursue you for damages incurred because of service outages or blocked traffic from the shared IP address.
The Client agrees to indemnify Cloud Networks, its contractors, employees and, agents and hold them harmless from all liabilities, claims and expenses, including but not limited to: solicitor fees, damages, internet connection fees, and all other third party fees that may arise as a result of the Clients usage of the Service, except to the extent that the liability, claim, damage or expense is caused or contributed to by the negligence, recklessness or willful misconduct of Cloud Networks, its contractors, agents or employees.
17. Confidential Information
17.1. Each party (“Recipient”) acknowledges that the other party (“Disclosing Party”) may disclose to it Confidential Information during the term of the Agreement. All such information will remain the exclusive property of the Disclosing Party.
17.2. Subject to clause 17.3 a Recipient must keep confidential any Confidential Information disclosed to it by the Disclosing Party.
17.3. A Recipient may disclose Confidential Information disclosed to it by the Disclosing Party:
17.3.1. to its officers or employees or financial, legal or other advisers who have a need to know for the purposes of this agreement and who undertake to the Disclosing Party a corresponding obligation of confidentiality to that undertaken by a Recipient under this clause 17;
17.3.2. only as is absolutely necessary in order to fulfil its obligations pursuant to this agreement; or
17.3.3. if required by law, provided that the Recipient must:
126.96.36.199. to the extent possible, notify the Disclosing Party in writing immediately when it anticipates that it may be required to disclose any Confidential Information disclosed to it by the Disclosing Party; and
188.8.131.52. if disclosure cannot be avoided:
184.108.40.206.1. only disclose Confidential Information to the extent reasonably required by law; and
220.127.116.11.2. follow any reasonable directions of the Disclosing Party concerning the disclosure.
18. Intellectual Property Rights
18.1. Except as may otherwise be specified in this agreement, all Intellectual Property rights in the Client Data are and will remain the property of the Client.
18.2. The Client grants us a royalty-free, non-exclusive, revocable licence to use the Client Data to the extent necessary to perform our obligations under this Agreement.
18.3. Except as may be expressly provided otherwise in this Agreement, or in any other agreement between the parties in writing:
18.3.1. all our Intellectual Property is and remains the property of us or its licensor (as applicable), and the Client obtains no rights or interests in the our IP or any component thereof; and
18.3.2. all Client Intellectual Property is and remains the property of the Client or its licensor (as applicable), and we obtain no rights or interests in the Client IP or any component thereof.
19.1. Termination for convenience
19.1.1. In relation to monthly contracts, either party may terminate this Agreement for convenience with 30 days’ prior written notice.
19.1.2. In all other circumstances either party may terminate this agreement for convenience with 90 days’ prior written notice.
19.2. Termination for breach
Either party may terminate this agreement with immediate effect upon notice if the other party:
19.2.1. commits any serious or persistent breach of any of the provisions of this agreement and:
18.104.22.168. where the breach is capable of remedy, does not remedy the breach within 21 days of receipt of written notice to remedy the breach; or
22.214.171.124. where the breach is not capable of remedy, has previously committed a breach of similar nature and has received written warning that this agreement will be terminated on a repetition of the such breach;
19.2.2. does not pay any amount due under the terms of this Agreement within 30 days of the date such payment was due; or
19.2.3. is, becomes, or is in jeopardy of becoming subject to any form of insolvency administration (including receivership, administration or liquidation).
19.3. Rights on termination
Upon the termination of this agreement for any reason:
19.3.1. the Client must cease using the Service;
19.3.2. except for any claims arising before termination or as may be specified otherwise in this agreement, neither party will have any claim against the other for indemnification or compensation as a result of the termination (unless the termination was in breach of this Agreement);
19.3.3. the Client must pay to us in full, on the date of termination, all fees outstanding and all fees that would have otherwise been payable to us for the full length of the Agreement as set out in the Prices Sheet;
19.3.4. the Client must return to us or destroy (at our discretion) all Confidential Information; and
19.3.5. All data backup is the Client’s responsibility in the event of account termination, under any circumstances.
20. Refusal of Service:
Cloud Networks reserves the right, acting reasonably, to refuse to provide the Service to any person, group, organization or business without providing a reason.
21.1. (Assignment) The Client may not assign or transfer the Clients rights hereunder without our prior written consent, which we may grant or withhold in our sole and absolute discretion.
21.2. (Severance) Any provision of Agreement which is unenforceable or partly unenforceable is, where possible, to be read down so as to be enforceable, and if it cannot be read down, the provision or part of the provision, severed to the extent necessary to make this Agreement enforceable, unless this would materially change the intended effect of these Terms of Service.
21.3. (Waiver) A right may only be waived in writing, signed by the party giving the waiver, and no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
21.4. (No Implied Terms) The Client may have the benefit of certain statutory guarantees relating to the Services pursuant to the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth). Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Conditions or in connection with the supply of the Services by law, statute, custom or international convention (including those relating to quality or fitness for purpose) are excluded.
21.5. (Governing Law) These Terms of Service are governed by the laws of South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from these courts.
21.6. (Insurance) The Client must take out and maintain those policies of insurance that would be held by a reasonably prudent customer in the Client’s position.
21.7. (No Adverse Interpretation) These Terms of Service are not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of these Terms of Service to protect itself.