1. About these terms
1.1 These terms are between Cloudcon Pty Ltd ABN 87 623 058 695 of Level 4, 344 Johnston Street, Abbotsford VIC 3067 (Cloudcon, we) and the customer named in the quote (Client, you).
1.2 These terms apply to the software and services described in a Cloudcon quote, proposal, order form or statement of work (Quote). You accept these terms when you accept a Quote or first use the Solution.
1.3 If there is any inconsistency, this order applies:
(a) a written agreement signed by both parties;
(b) the Quote;
(c) these terms.
1.4 We may update these terms by publishing a new version on our website. An updated version applies to you from the start of your next renewal term, unless the change is required by law.
2. Definitions
Agreement means the Quote, these terms and any document they refer to.
Data means all data and content that you, or anyone on your behalf, enters into or processes through the Solution or Services.
Fees means the fees in the Quote or our invoices.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Services means the implementation, configuration, migration, training, support and other services described in the Quote.
Solution means the software, platform and documentation described in the Quote.
Total Contract Value means the total amount payable under the Quote, excluding GST.
3. Term
3.1 The Agreement starts when you accept the Quote, unless the Quote states another date.
3.2 The initial term, renewal term and notice periods are as stated in the Quote. If none are stated, the Agreement continues until it is ended under clause 14.
4. Licence
4.1 Subject to payment of the Fees, we grant you a non-exclusive, non-transferable licence to use the Solution during the term, for your internal business purposes, within Australia and New Zealand, and within the users and scope in the Quote.
4.2 The Solution may include software owned by third parties, including Prestartr (owned by The Trustee for ALTO SOFTWARE TRUST) and Upvise (owned by Unyverse Pte Ltd).
4.3 You must not, and must not let anyone else:
(a) copy, modify, resell, sublicense or create derivative works from the Solution;
(b) reverse engineer, decompile or disassemble the Solution, except where the law allows it;
(c) give anyone access to the Solution other than as allowed by the Agreement; or
(d) remove proprietary notices or use the Solution in a way that damages our or our licensors’ rights or reputation.
5. Services
5.1 We will provide the Services described in the Quote.
5.2 Timeframes, estimates and milestones are indicative unless the Quote says they are binding.
5.3 Work outside the Quote, including extra migration, custom development, out-of-hours support and support for third-party systems, is charged at our then-current rates or as agreed in writing.
6. Your responsibilities
6.1 You must give us the access, information, decisions and cooperation we reasonably need to deliver the Solution and Services. Delays or extra costs caused by a lack of these may be charged.
6.2 You are responsible for the accuracy and legality of your Data, and for keeping your own export copy of it.
7. Fees and payment
7.1 You must pay the Fees as set out in the Quote and our invoices. If no payment period is stated, invoices are due within 30 days.
7.2 Fees exclude GST, which you must pay in addition where it applies.
7.3 If you dispute an invoice, you must pay the undisputed part by the due date.
7.4 We may charge interest on overdue amounts at our primary trading bank’s corporate overdraft reference rate plus 2% per year.
7.5 Unless the Quote says otherwise, we may increase recurring Fees once a year by CPI (Melbourne, All Groups), with at least 30 days’ written notice.
7.6 If Fees remain unpaid 14 days after we give you notice, we may suspend the Solution and Services until they are paid.
8. Support and updates
8.1 Support hours, response times and service levels are as stated in the Quote or a signed agreement.
8.2 We may patch, update and improve the Solution. We will use commercially reasonable efforts not to materially reduce the core functions you already use.
8.3 We may require you to stay on a supported version of the Solution to receive support.
9. Your data
9.1 You own your Data.
9.2 We use your Data only as reasonably necessary to provide, operate, maintain, secure, support and troubleshoot the Solution and Services for you. We do not use your Data, or anything derived from it, for benchmarking, cross-customer analytics, product development, research or training machine learning models.
9.3 Production Data in the Prestartr platform is hosted on Amazon Web Services in the Sydney region.
10. Privacy and data processing
10.1 Each party must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles, to the extent they apply to it.
10.2 You decide what Personal Information is entered into the Solution, and you are responsible for having the notices and consents needed to provide it to us.
10.3 We process Personal Information in your Data on your behalf, only to provide the Solution and Services, to follow your lawful instructions, or as required by law. We also handle account, billing, support and contact information for our own business purposes under our Privacy Policy.
10.4 We maintain reasonable technical and organisational measures to protect Personal Information from misuse, interference, loss and unauthorised access, change or disclosure.
10.5 Our personnel who access Personal Information are bound by confidentiality obligations and access it only as needed for their work.
10.6 We may use sub-processors for hosting, infrastructure, support, communications, backup and other purposes reasonably needed to provide the Services. We take reasonable steps to make sure each one is bound by written obligations that protect Personal Information to a similar standard.
10.7 We or our sub-processors may access, store or process Personal Information outside Australia where reasonably required to provide the Services. Where we do, we take reasonable steps to make sure the overseas recipient does not breach the Australian Privacy Principles.
10.8 We will notify you without undue delay after becoming aware of a confirmed data breach affecting Personal Information in your Data that is likely to have a material impact on you. We will give you the information reasonably available to us and reasonably cooperate with you on your legal obligations arising from it.
10.9 We will reasonably help you respond to requests to access, correct or delete Personal Information, and to complaints or regulator enquiries. Material non-standard help may be charged.
10.10 Once in any 12-month period, on reasonable written request, we will give you a summary of our security and privacy measures or any available independent assurance reports, subject to confidentiality.
11. Confidentiality
11.1 Each party must keep the other’s confidential information confidential and use it only to perform or receive the benefit of the Agreement.
11.2 A party may disclose confidential information to its personnel, contractors and professional advisers on a need-to-know basis, or where required by law.
11.3 Each party must promptly tell the other of any actual or suspected unauthorised access to, or disclosure of, the other’s confidential information.
11.4 These obligations survive the end of the Agreement.
12. Intellectual property
12.1 We and our licensors keep all intellectual property in the Solution, documentation, templates, configurations and methods, including improvements to them.
12.2 Feedback and suggestions you give us about the Solution become our property.
12.3 Nothing in the Agreement transfers ownership of your Data to us.
13. Warranties and liability
13.1 Each party warrants it has authority to enter into the Agreement.
13.2 To the extent permitted by law, the Solution is provided as is and we exclude all implied warranties. We do not promise that the Solution will be uninterrupted, error free or secure, or that it will meet your legal obligations, although we take commercially reasonable steps to make it so. Nothing in the Agreement excludes rights you have under the Australian Consumer Law that cannot be excluded.
13.3 Neither party is liable for indirect or consequential loss, including loss of profit, revenue, data, goodwill or business opportunity.
13.4 Each party’s total liability under the Agreement is limited to the Fees paid in the 12 months before the first event giving rise to the claim.
13.5 Clause 13.4 does not apply to death or personal injury, damage to tangible property, breach of confidentiality or privacy obligations, third-party intellectual property claims, breach of law, or fraud or wilful misconduct.
13.6 Each party’s liability is reduced to the extent the other party contributed to the loss, and each party must take reasonable steps to reduce its loss.
13.7 You indemnify us against third-party claims that your Data infringes someone’s rights, including privacy rights, or is unlawful or misleading.
13.8 We indemnify you against third-party claims that the Solution infringes someone’s intellectual property rights, and against loss caused by our gross negligence or wilful misconduct.
14. Suspension and ending the Agreement
14.1 We may suspend access to the Solution or Services where reasonably required for security, maintenance or legal compliance, or under clause 7.6.
14.2 Either party may end the Agreement by written notice if the other party:
(a) materially breaches it and the breach cannot be fixed, or is not fixed within 30 days of notice; or
(b) becomes insolvent.
14.3 Unless the Quote says otherwise, after the first 12 months you may end the Agreement for convenience with at least 45 days’ written notice.
14.4 If you end the Agreement for convenience:
(a) Fees already paid are not refunded; and
(b) unless the Quote says otherwise, 50% of the unpaid balance of the Total Contract Value becomes immediately payable.
15. After the Agreement ends
15.1 Your licence ends and you must pay all outstanding Fees.
15.2 For 30 days after the Agreement ends, we will take reasonable steps to let you access and copy your Data in a reusable format. Help with extracting or transferring Data may be charged.
15.3 After that period, we will delete or de-identify your Data in our production environment, except where we must keep it by law, or it is reasonably needed for backup cycles, dispute resolution or legitimate record-keeping.
15.4 Clauses that by their nature are meant to continue, including those on confidentiality, privacy, intellectual property, liability, indemnities and payment, survive the end of the Agreement.
16. Disputes
16.1 The parties must first try in good faith to resolve any dispute.
16.2 If a dispute is not resolved within 30 days of notice, either party may refer it to mediation under the Australian Disputes Centre’s Guidelines for Commercial Mediation before starting court proceedings. Either party may still seek urgent relief from a court.
17. General
17.1 The Agreement is the entire agreement between the parties on its subject matter.
17.2 Apart from updates under clause 1.4, changes to the Agreement must be in writing and signed by both parties.
17.3 Neither party may assign or transfer its rights under the Agreement without the other party’s written consent.
17.4 If any part of the Agreement is invalid, it is severed and the rest continues.
17.5 A waiver must be in writing. A delay in exercising a right is not a waiver.
17.6 Neither party is liable for delays caused by events beyond its reasonable control, provided it gives notice and takes reasonable steps to reduce the impact.
17.7 The Agreement is governed by the laws of Victoria, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.