Updated on 23 February 2021
Cloudscene Services Agreement
This Services Agreement, the Service Schedule(s), the Platform Terms and the Service Order Form set out the terms and conditions that apply to Customer’s access and use of the Services and forms an agreement (together, the Agreement) between Cloudscene Pty Ltd (ACN 603 822 493) of 14-16 Church Street, Fortitude Valley, Brisbane, Australia (Cloudscene) and the Customer.
(a) To access the Services, Customer must create a Cloudscene account and provide a valid email address to Cloudscene.
(b) Cloudscene may assume that any request in relation to the Services it receives from Customer, its agents or employees, or from Customer’s Cloudscene account is authorized by Customer. Customer must notify Cloudscene in writing immediately if Customer believes that there has been unauthorized use of its account or if its account information is lost or stolen. Customer is responsible for all use of its Cloudscene account.
(c) If any representative of the Customer accesses the Cloudscene account or agrees to be bound by this Contract on behalf of a company or an entity they represent, that individual represents and warrants to Cloudscene that they have been duly authorised to agree to be bound by these terms and accept them on behalf of the company or entity they represent.
2. The Services
(a) Cloudscene will issue the Customer with a Service Order Form after the receipt of a request for services from the Customer, which will include details of the Service to be provided and applicable Charges for the Service.
(b) The Customer may accept the terms of the Service Order Form by either: (i) executing a copy of the Service Order Form (including electronically); or (ii) making the payment to Cloudscene as specified in an invoice issued in relation to the Service Order Form, following which the Agreement will be created as between Cloudscene and the Customer.
(c) From time to time during the term of this Agreement, Cloudscene may assess Customer’s creditworthiness and to communicate with credit reporting agencies about Customer’s credit status. The Customer consents to Cloudscene using information that Customer has provided to Cloudscene for this purpose.
(d) Cloudscene may also set a credit limit or restrict Customer’s use of the Services to limit Cloudscene’s financial exposure. If Customer exceeds its credit limit, Cloudscene may restrict Customer’s ability to order new Services and/or require payment from Customer.
3. Customer responsibilities
(a) Any information or content that Cloudscene permits Customer to host, share, publish, post, store or upload to the Platform (including all data, text, video, still images, audio, advertisements, photos and creative designs, feedback, suggestions, comments, forum posts, public messages, reviews and ratings) must be Customer’s own works or works which Customer is using with the owner’s consent (Customer Content).
(b) Customer must provide any content or information which Cloudscene requires in order to deliver the Services (Customer Content), which may be delivered via email or directly via the Platform. Customer will be solely responsible for providing the content for all Services, if applicable. If at any time Customer wishes to modify its content, it must do so directly via the Platform or by notifying Cloudscene.
(c) Customer grants Cloudscene (or warrants that the owner of such information has expressly granted to Cloudscene) a non-exclusive, irrevocable, perpetual, royalty-free and fully sub-licensable licence to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display and publish the Customer Content throughout the world in any media, including the Platform, for the purpose of providing the Services. Customer also grants each user of the Platform a non-exclusive licence to use, reproduce, adapt, translate, distribute, prepare derivative works of, display and perform Customer Content as permitted by Cloudscene and these terms.
(d) Customer warrants that the Customer Content: (i) does not breach any applicable laws, regulations, standards or codes; (ii) does not infringe any third party’s intellectual property rights; (iii) is not misleading or deceptive or likely to mislead or deceive; (iv) does not contain material that is unlawful, threatening, defamatory, obscene, indecent or otherwise offensive; (v) does not contain material that is inappropriate having regard to the purpose of the Platform; and (vi) does not contain any virus, worm, trojan or other code which is contaminating or destructive to the files, data or programs of this website or any of Cloudscene’s users.
(e) If Cloudscene believes the Customer Content may or is reasonably likely to breach clause 3(d), Cloudscene may edit or remove Customer Content at any time without notice. Cloudscene will not be liable to the Customer for any breach of this Agreement or failing to provide the Service if taking action under this clause 3(e).
(f) When Customer uses a Service or obtains the benefit of a Service, or otherwise uses the Platform, it must: (i) comply with this Agreement, including the Platform Terms and any Cloudscene policies relevant to that Service; (ii) comply with all applicable laws, regulations and codes of conduct; (iii) comply with Cloudscene’s reasonable directions concerning Customer’s use of that Service; and (iv) use that Service for business purposes only and not for re-supply or resale.
(g) Customer indemnifies Cloudscene, its related entities and their respective directors, officers, employees, agents and contractors (Indemnified Parties) against all Loss incurred by the Indemnified Parties arising directly or indirectly out of or in connection with Customer’s breach of this Agreement.
(h) The Platform has a service availability target of 99.5%. If a Service is unavailable (other than due to Customer’s acts or omissions, a third party’s acts or omissions or Cloudscene suspending the service under clause 5 for 12 consecutive hours after Customer has notified Cloudscene of that fact, Cloudscene will extend the term of the affected Service by a period equal to the period of unavailability. This will be Customer’s sole remedy in the event of any Service failure or interruption.
4. Charges and payment
(a) The Customer agrees to pay the Charges to Cloudscene for the Services, in the amounts and at the times specified in the Service Order Form
(b) Cloudscene will issue invoices to the Customer for the Charges payable to the Customer at the times specified in the Service Order Form (or if no time is specified, monthly in arrears). All charges will be invoiced and must be paid in the currency specified on the relevant invoice.
(c) The Customer must pay Charges specified in an invoice within thirty (30) days of receipt, using one of the payment methods listed on the invoice, without any set-off or deduction.
(d) If Customer does not pay an invoice in full by the due date then, in addition to any other rights Cloudscene has under this Agreement, Cloudscene may charge Customer a default fee on the unpaid amount on a daily basis from the due date until payment is made at the rate of three per cent (3%) per annum above the prevailing base rate charged by its current bank.
(e) If Customer considers in good faith there has been a mistake in any invoice, Customer must notify Cloudscene no later than ninety (90) days after the relevant invoice date with full details.
(f) Cloudscene may vary the charges at any time: (i) on thirty (30) days’ notice, if Cloudscene provides a Service to Customer that does not have a Minimum Term; or (ii) on thirty (30) days’ notice, if Cloudscene continues to provide a Service to Customer after the Minimum Term or if that Service has expired and the Service is being provided on a month to month basis (if applicable).
(g) All charges for the Services are exclusive of applicable Taxes and Regulatory Fees. Cloudscene is entitled to add to the amount otherwise payable an additional amount for the applicable Taxes and Regulatory Fees.
(h) If Customer is required by law to deduct or withhold Taxes from a payment to Cloudscene, then Customer may make those deductions or withholdings (or both). The Customer must provide Cloudscene with a receipt for each payment reflecting the deduction or taxes withheld. Further, to the extent amounts are deducted or taxes withheld, which are not subject to the exemption mentioned in clause 4(i), Cloudscene will increase Customer’s payment amount by the deduction or taxes withheld to ensure Cloudscene receives the full amount owed for services rendered.
(i) If Customer claims a tax exemption, then Customer must provide Cloudscene with a properly executed exemption form that applies to the jurisdiction/s in which the Service is rendered. Once the exemption form is received and is deemed to be satisfactory evidence, Taxes will not be charged for the applicable Service.
(j) Cloudscene uses third party service providers to facilitate online payment for its services and does not retain or store credit card details. Customer authorizes Cloudscene to share with its third party payment providers any information and payment instructions Customer provides to Cloudscene, to the extent required to complete Customer’s transactions.
5. Service Suspension
(a) Cloudscene may temporarily suspend or restrict Customer’s Services:
(i) if Customer does not pay an invoice within thirty (30) days after receiving notice from Cloudscene that payment is overdue;
(ii) on 5 days’ written notice, if Customer fails to comply with this Agreement;
(iii) immediately if Cloudscene believes it is necessary to do so to comply with any law or an order of any government or regulatory body;
(iv) immediately if Cloudscene believes it is necessary to do so to protect any person, equipment, network or to attend to any emergency; or
(v) on 14 days’ notice, where there are technical problems with the Service or where Cloudscene maintenance is required, provided that Cloudscene may immediately suspend Services without notice if emergency repairs are required.
(b) If Cloudscene suspends or restricts a Service, Cloudscene will only continue to charge Customer for the Service if the suspension or restriction is due to Customer’s negligence or breach of this Agreement.
(a) To the extent permitted by law, Cloudscene excludes all statutory or implied conditions or warranties, including any implied warranties or conditions of merchantability or fitness for a particular purpose. Cloudscene does not warrant that the Services will be continuous, error-free or secure. Cloudscene’s liability for non-excludable conditions and warranties is limited (where it can be limited) to:
(i) supplying the Services again; or
(ii) paying Customer the cost of having the Services supplied again.
(b) To the extent permitted by law, each party’s total liability in respect of all claims in connection with this Agreement (whether in contract, negligence or any other tort, under any statute or otherwise) will be the sum of the charges paid or payable by Customer under this Agreement in the 12-month period preceding the date of the event that gave rise to the claim. This limitation of liability does not apply in respect of indemnity obligations or obligations to pay charges under this Agreement.
(c) Neither party will be liable to the other (under the law of contract, tort, equity or otherwise) for:
(i) any damages of any kind arising out of or in connection with this Agreement that are indirect or consequential;
(ii) any loss or corruption of any data, interruption to business, loss of revenue, loss of sale, loss of profits, loss of business or any other economic loss or any loss of goodwill; or
(iii) any failure to perform this Agreement if that failure is caused by an event which is an Intervening Event.
7. Intellectual Property
(a) This Agreement does not transfer any of Cloudscene’s Intellectual Property to Customer, or any of Customer’s Intellectual Property to Cloudscene.
(b) If any improvements or changes are made by anyone to the Services during the time Cloudscene is providing the Services, Cloudscene will own the Intellectual Property in those improvements or changes and Customer must do all things reasonably within its power to assign to Cloudscene all Intellectual Property in such improvements or changes.
(c) Customer consents to Cloudscene listing Customer (including any Customer trade names, trademarks and service marks) as a customer on Cloudscene’s website and to otherwise referring to Customer (including to use images of the Customer’s logo) as a customer in Cloudscene’s advertising material and marketing collateral.
(d) Cloudscene grants Customer a limited, revocable, non-exclusive right to use Cloudscene’s name as part of a link to the Platform, subject to the Platform Terms. Except as provided for in this paragraph (d), the Customer must not use the name, trademark, or service mark of Cloudscene, or any other intellectual property of Cloudscene, without Cloudscene’s prior written approval.
8. Personal Information
(b) Customer agrees that Cloudscene may collect and disclose Customer’s Personal Information from or to:
(i) any third party supplier for the purpose of providing the Services;
(ii) credit providers or credit reporting agencies for the purpose of ongoing credit management of Customer’s account;
(iii) law enforcement agencies to assist them with criminal prosecution or crime prevention activities; and
(c) Each party agrees to handle Personal Information obtained from the other party in accordance with applicable privacy laws.
9. Confidential Information
(a) Each party agrees in relation to the Confidential Information of the other party:
(i) to keep confidential the Confidential Information;
(ii) to use the Confidential Information solely for the purposes of the performance of its obligations and the exercise of its rights under this Agreement; and
(iii) to disclose the Confidential Information only to those of its (and its Affiliates’) directors, employees, agents and advisors who have a need to know (and only to the extent each has a need to know) and who are aware and agree that the Confidential Information must be kept confidential.
(b) The obligations of confidentiality under clause 9(a) do not extend to information, which is required by law, or the rules of any securities exchange, to be disclosed and the party required to make the disclosure ensures that information is disclosed only to the extent required.
10. Term and termination
(a) If a Minimum Term applies to a Service, the Minimum Term will be specified on the relevant Service Order Form. On the expiry of any Minimum Term, or if no Minimum Term is specified, then unless specified otherwise in the Service Order Form, the Service will continue until terminated by either party in accordance with this Agreement.
(b) If no Minimum Term applies to a Service, or the Minimum Term has expired, Customer may terminate that Service at any time on 30 days’ notice, but must pay charges for the full Charging Period in which termination occurs (if applicable).
(c) Either party may terminate:
(i) a Service by written notice if the other party has breached a material term of this Agreement as it relates to that Service and has failed to remedy the breach within thirty (30) days of receipt of that notice; or
(ii) all Services immediately by notice in writing if the other party suffers an Insolvency Event.
(d) Cloudscene may terminate a Service on notice to Customer:
(i) if Cloudscene reasonably determines that Customer poses an unacceptable credit risk;
(ii)if Cloudscene reasonably believes it needs to do so to comply with any law or any order or request of any government or regulatory body
(iii) if Cloudscene is unable to continue to supply a Service to Customer for any reason (including due to technical reasons or the termination of any agreement with its suppliers); or
(iv) for any reason, by providing Customer with thirty (30) days’ prior notice, provided that if a Minimum Term applies to a Service, the termination will be effective from the expiry of the Minimum Term.
(e) If this Agreement is terminated before the end of the Minimum Term (if applicable) for any reason other than by the Customer under clauses 10(c) or 11(a), Customer must pay Cloudscene an amount equal to the balance of fees due and payable in respect of the unexpired balance of the Minimum Term (the Early Termination Fee). Customer agrees that the Early Termination Fee is a reasonable estimate of Cloudscene’s likely financial loss if any Service is terminated prior to the end of the Minimum Term.
11. Changes to this Agreement
(a) Except for changes in Charges (which are regulated by clause 4(f) above), Cloudscene may change the terms of this Agreement at any time by giving Customer thirty (30) days’ prior notice (Notice Period). If Customer does not agree with the change, Customer may terminate any affected Services by giving Cloudscene notice in writing prior to the expiry of the Notice Period. Any Service terminations must take effect within fourteen (14) days after the expiry of the Notice Period. If Customer takes no action during the Notice Period, Customer will be deemed to have accepted the changes.
(b) Cloudscene may modify the Cloudscene API, or may transition to a new API at any time but will use reasonable efforts to maintain backward compatibility where reasonably practicable. Cloudscene will notify Customer if a modification is likely to adversely affect Customer’s ability to use the CloudsceneAPI.
12. Representations and warranties
(a) The Customer represents and warrants that any information the Customer provides to Cloudscene in ordering the Services is true and correct and that Cloudscene may rely upon it.
(b) Each party represents and warrants to the other party that:
(i) it is a corporation duly incorporated and validly existing and in good standing under the laws of the jurisdiction of its incorporation; and
(ii) it has the corporate power to enter into and perform its obligations under the Agreement and to carry out the transactions contemplated by the Agreement.
(a) Cloudscene may provide any notices under this Agreement by sending an email to the email address associated with Customer’s account.
(b) Notices will take effect upon sending to Customer’s email address. Customer is responsible for keeping its email address current.
(c) Customer may provide notices under this Agreement by personal delivery or registered post to Cloudscene at Level 14 – 16 Church Street, Fortitude Valley Queensland 4006, Australia or by email to email@example.com
(a) Customer may not transfer its rights and responsibilities under this Agreement unless Cloudscene agrees in writing. Where Cloudscene reasonably considers there will be no adverse effect on Customer, Cloudscene may transfer its rights and responsibilities under this Agreement without Customer’s consent and without notice.
(b) This Agreement is comprised of this Services Agreement, the Services Schedule, the Platform Terms and the applicable Service Order Form. If there is any inconsistency between the documents that form this Agreement, the order of precedence is (i) the Service Schedule(s), (ii) the Service Order Form, (iii) this Agreement; and (iv) the Platform Terms.
(c) Cloudscene’s relationship with the Customer under this Agreement is one of independent contractors and not of partnership, joint venture or principal and agent.
(d) Cloudscene may have subcontractors or other agents meet any of its obligations under this Agreement but Cloudscene will remain liable to Customer for satisfying those obligations.
(e) Customer acknowledges that it has relied on its own judgment to evaluate the suitability of the Services for the purpose for which Customer requires them. Customer does not rely on any statement, representation or promise by Cloudscene that is not expressly set out in this Agreement.
(f) This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter.
(g) Subject to clause 11, this Agreement may only be varied by agreement in writing signed by the parties.
(h) If a provision of this Agreement is void, voidable, unenforceable or the invalid part severed, the remainder of this Agreement will not be affected.
(i) Each party will pay its own costs and expenses in respect of this Agreement and any agreement or document contemplated by this Agreement or required to give effect to it.
(j) No failure, delay or indulgence by a party in exercising any power or right conferred by this Agreement will operate as a waiver of that power or right.
(k) This Agreement and each Service Order Form are governed by the laws of Queensland, Australia. Each party agrees to the exclusive jurisdiction of the courts of Queensland, Australia.
Affiliate in respect of an entity (the first entity), means another entity that Controls the first entity, that is Controlled by the first entity or that is under common Control with the first entity.
API means application programming interface.
Charges means the amount payable by the Customer to Cloudscene for the Services, as specified in the Service Order Form.
Charging Period means the frequency by which Charges are payable by the Customer to Cloudscene for the Services, as specified in the Service Order Form (and if not specified, a monthly Charging Period applies).
CloudsceneAPI means the collection of Cloudscene application programming interfaces known as the CloudsceneAPI.
Confidential Information of a party (Discloser) means the following information, regardless of its form or whether the other party (Recipient) becomes aware of it before or after the date of this Agreement:
(a) all information treated by the Discloser as confidential, (including but not limited to information regarding strategy, information regarding personnel, and any Intellectual Property or industrial, marketing or commercial information relating to or developed in connection with or in support of the Discloser’s business); and
(b) disclosed by the Discloser to the Recipient or of which the Recipient becomes aware; except information:
(i) disclosed with the Discloser’s consent;
(ii) the Recipient creates (whether alone or jointly with any third person) independently of the Discloser;
(iii) that is public knowledge (otherwise than as a result of a breach of confidentiality by the Recipient or any other person with an obligation to keep such information confidential); or
(iv) acquired from a third party entitled to disclose it.
Control means, with respect to a party or entity, the direct or indirect ownership of more than fifty percent (50%) of the voting securities of such party or entity, or the power to direct the management of the party or entity, whether by operation of law, by contract or otherwise.
Customer means the entity specified as the Customer in the Service Order Form.
Early Termination Fee has the meaning given in clause 10(e).
Insolvency Event means where an administrator, liquidator, manager and receiver or any other administrator is appointed over the assets or the business of the entity, or the entity enters into any composition or arrangement with its creditors or the entity has any proceeding taken, with respect to it in any jurisdiction to which it is subject, or any event happens in such jurisdiction that has an effect equivalent or similar to any of the events referenced herein.
Intellectual Property means all industrial and intellectual property rights, including registered or unregistered trademarks, patents, copyright, rights in circuit layouts, trade secrets, confidential know-how and information and any application or right to apply for registration of any of those rights.
Intervening Event means an event or cause which is beyond the reasonable control of the person claiming that an intervening event has occurred including, without limitation, acts or omissions of third party network suppliers, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes or lockouts, or quarantine restriction.Loss means all losses, damages, liabilities, claims, costs and expenses (including reasonable attorneys’ fees).
Minimum Term means the minimum contract term for which Customer acquires a Service, as set out in the relevant Service Order Form, commencing on the date specified in the Service Order Form.
Personal Information means any information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified individual, or an individual who is reasonably identifiable.
Platform means the www.cloudscene.com platform (including its websites, any subdomains of those websites, mobile sites, apps and APIs).
Platform Terms means the terms governing Customer’s use of the Platform, available at www.cloudscene.com.
Regulatory Fees means fees charged to Cloudscene by any foreign or domestic government or governmental, semi-governmental, administrative, fiscal, regulatory or judicial body, department, commission, authority, tribunal, agency or entity.
Service means the service(s) to be delivered by Cloudscene as specified in the Service Order Form and Services Schedule.
Service Order Form means the service order form issued by Cloudscene and accepted by the Customer in accordance with clause 2(b).
Service Schedule means a schedule attached to the Service Order Form that sets out service specific information, additional terms, Charges and service levels (if any) applicable to the supply of a Service under this Agreement.
Taxes means all applicable VAT, GST, consumption tax, use, excise, access, bypass, franchise, regulatory or other similar taxes, fees, charges or surcharges that are imposed on or based on the provision, sale or use of the Services but excluding taxes based on its net income.
In this Agreement, the following rules apply unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and conversely;
(c) a gender includes all genders;
(d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
(f) a reference to a clause or schedule is a reference to a clause of, or a schedule to, this Agreement;
(g) a reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;
(h) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(i) a reference to dollars and $ is a reference to US dollars; and
(j) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions.