This Services Agreement, the Service Schedule(s), the Website Terms and Customer’s Orders set out the terms and conditions that apply to Customer’s access and use of the Services and forms an agreement (this Agreement
) between Cloudscene Pty Ltd (ACN 603 822 493) of 14-16 Church Street, Fortitude Valley, Brisbane, Australia (Cloudscene
) and Customer.ACCOUNT
To access the Services, Customer must create a Cloudscene account and provide a valid email address.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.ORDERING SERVICES
By submitting an Order to Cloudscene:(a).
Customer warrants that the information Customer provides to Cloudscene in an Order is true and correct and that Cloudscene may rely upon it; and(b).
Customer agrees to acquire the Services described in the Order on the terms set out in this Agreement, effective on and from the date of Order submission.2.
From time to time during the term of this Agreement, Customer authorizes Cloudscene to assess Customer’s creditworthiness and to communicate with credit reporting agencies about Customer’s credit status. Cloudscene may give these agencies information that Customer has provided to Cloudscene.3.
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.CUSTOMER RESPONSIBILITIES
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
Customer must deliver Customer Content for the Services to Cloudscene digitally via email or directly via the Platform. Customer will be solely responsible for providing the content for all Services. If at any time Customer wishes to modify its content, it must do so directly via the Platform.3.
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, display and publicly perform Customer Content throughout the world in any media. 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.4.
Customer warrants that Customer Content:(a).
does not breach any applicable laws, regulations, standards or codes; (b).
does not infringe any third party’s intellectual property rights; (c).
is not misleading or deceptive or likely to mislead or deceive; (d).
does not contain material that is unlawful, threatening, defamatory, obscene, indecent or otherwise offensive; and (e).
does not contain material that is inappropriate having regard to the purpose of the Platform; and 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.5.
Cloudscene may, but is not obliged to, monitor, edit or remove Customer Content at any time without notice and without liability to you.6.
When Customer uses a Service, it must:comply with this Agreement, including the Website Terms and any Cloudscene policies relevant to that Service; comply with all applicable laws, regulations and codes of conduct; comply with Cloudscene’s reasonable directions concerning Customer’s use of that Service; and use that Service for business purposes only and not for re-supply or resale.Cloudscene may investigate any misuse of the Services, including in conjunction with law enforcement agencies.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 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.CHARGES AND PAYMENT
Charges for the Services will be specified on Customer’s Order, or if not specified, as set out on the Platform. Cloudscene will issue clear and accurate invoices. Cloudscene will notify Customer by email when an invoice is available in Customer’s account. All charges will be invoiced and must be paid in the currency specified on the relevant invoice.Customer must pay all undisputed amounts on invoices within thirty (30) days of the invoice date using one of the payment methods listed on the invoice. For certain Services, payment is required prior to Service activation. Cloudscene will determine how payments will be applied against outstanding invoices .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. If Customer considers in good faith there has been a mistake in any invoice, Customer must notify Cloudscene within ninety (90) days after the relevant invoice date with full details. Customer will not be liable to pay for Services that it has not agreed to receive. Cloudscene will investigate Customer’s claim and suspend its collection processes until the claim has been resolved. If Cloudscene has made a mistake, it will reimburse Customer as soon as practicable.Cloudscene may vary the charges at any time:on thirty (30) days’ notice, if Cloudscene provides a Service to Customer that does not have a Minimum Term; or on thirty (30) days’ notice, if Cloudscene continues to provide a Service to Customer after the Minimum Term of that Service has expired and the Service is being provided on a month to month basis.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.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. 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.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.SERVICE SUSPENSION
Cloudscene may temporarily suspend or restrict Customer’s Services:if Customer does not pay an invoice within five (5) days after receiving notice from Cloudscene that payment is overdue; on 5 days’ written notice, if Customer fails to comply with this Agreement; if Cloudscene believes it is necessary to do so to comply with any law or an order of any government or regulatory body; if Cloudscene believes it is necessary to do so to protect any person, equipment, network or to attend to any emergency; or 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.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 failure to comply with this Agreement.LIABILITY
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: supplying the Services again; or paying Customer the cost of having the Services supplied again. 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.Neither party will be liable to the other (under the law of contract, tort, equity or otherwise) for:any damages of any kind arising out of or in connection with this Agreement that are indirect or consequential; 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 any failure to perform this Agreement if that failure is caused by an event which is an Intervening Event.INTELLECTUAL PROPERTY
This Agreement does not transfer any of Cloudscene’s Intellectual Property to Customer, or any of Customer’s Intellectual Property to Cloudscene.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. 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 as a customer in Cloudscene’s advertising material and marketing collateral.Subject to the following sentence, nothing in this Agreement grants Customer any right to use the name, trademark, or service mark of Cloudscene without Cloudscene’s prior written approval. 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 Website Terms.PERSONAL INFORMATION
Each party agrees in relation to the Confidential Information of the other party:to keep confidential the Confidential Information; 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 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. 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.TERM AND TERMINATION
If a Minimum Term applies to a Service, the Minimum Term will be specified on the relevant Order. Unless stated otherwise in a Service Schedule, on the expiry of any Minimum Term, or if no Minimum Term is specified, the Service will continue until terminated by either party in accordance with this Agreement.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).Either party may terminate: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 all Services immediately by notice in writing if the other party suffers an Insolvency Event.Cloudscene may terminate a Service on notice to Customer: if Cloudscene reasonably determines that Customer poses an unacceptable credit risk; 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; 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 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.If before the end of the Minimum Term, Customer terminates a Service other than under clause 10(b) or Cloudscene terminates a Service under clause 10(c), Customer must pay Cloudscene an Early Termination Fee, calculated as an amount equal to the balance of fees due and payable in respect of the unexpired balance of the Minimum Term. 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.CHANGES TO THIS AGREEMENT
Except for changes in charges (which are regulated by clause 4 (f) above) and changes to the specific cookies used on the Platform (which will be notified to Customer via the Platform at the time of any such change, giving Customer the opportunity to consent and/or adjust its cookie preferences), 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. 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 Cloudscene API.NOTICES
Cloudscene may provide any notices under this Agreement by sending an email to the email address associated with Customer’s account. Notices will take effect upon sending to Customer’s email address. Customer is responsible for keeping its email address current. 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
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.This Agreement is part of the terms of any and all Orders. If there is any inconsistency between the documents that form this Agreement, the order of precedence is (i) the Service Schedule(s), (ii) the Order, (iii) this Agreement; and (iv) the Website Terms. Cloudscene’s relationship with the Customer under this Agreement is one of independent contractors and not of partnership, joint venture or principal and agent.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.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. 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.Subject to clause 11, this Agreement may only be varied by agreement in writing signed by the parties.If a provision of this Agreement is void, voidable, unenforceable or the invalid part severed, the remainder of this Agreement will not be affected. 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.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. This Agreement and each Order are governed by the laws of Queensland, Australia. Each party agrees to the exclusive jurisdiction of the courts of Queensland, Australia.DICTIONARY
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. Charging Period
means the charging period applicable to Customer’s Service, as specified on the Order (and if not specified, a monthly Charging Period applies). Cloudscene API
means the collection of Cloudscene application programming interfaces known as the Cloudscene API. 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: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 disclosed by the Discloser to the Recipient or of which the Recipient becomes aware; except information:disclosed with the Discloser’s consent; the Recipient creates (whether alone or jointly with any third person) independently of the Discloser; 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 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 entering into this Agreement, by accepting these terms and conditions on the Platform or by submitting an Order. Early Termination Fee
means the early termination charge calculated in accordance with 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 Order, and which commences on the Service start date specified in that Order. Order
means an order that sets out the Services that Customer requests Cloudscene to provide (whether in manual format or as submitted via the Platform or via the Cloudscene API). 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
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) ordered by Customer and which Cloudscene agrees to provide to Customer under an Order and includes any Services which Customer self-provisions or which Customer uses via the Cloudscene API. Service Schedule
means a schedule attached to this Agreement that sets out service specific information, terms 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. Website Terms
means the terms governing Customer’s use of the Platform, available at www.cloudscene.com
In this Agreement, the following rules apply unless the context requires otherwise:headings are for convenience only and do not affect interpretation; the singular includes the plural and conversely; a gender includes all genders; if a word or phrase is defined, its other grammatical forms have a corresponding meaning; a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them; a reference to a clause or schedule is a reference to a clause of, or a schedule to, this Agreement; 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; 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; a reference to dollars and $ is a reference to US dollars; and the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions. Service Schedule – Advertising Service Service description
Advertising promoting an organization or data center(s) in a premium position within selected pages on the Platform. Additional terms
Customer acknowledges that, notwithstanding the Service start date specified in an Order, the Service will not be provisioned until Customer has completed the listing process and submitted all content and/or images necessary for Cloudscene to provision that Service. Customer content and/or images may be submitted digitally via email or directly via the Platform.The Service will automatically expire at the end of the Minimum Term unless Customer renews the Service for a further Minimum Term prior to the expiry date. Premium positions are allocated based on the order in which Services are provisioned. No changes may be made to a Service once the Order has been submitted by Customer.