TERMS & CONDITIONS OF SERVICE (AUSTRALIA)
1. BINDING AGREEMENT
(a) These Terms & Conditions of Service (T&Cs), together with the Application Form, Price List and any schedules and documents attached to or incorporated by reference into these T&Cs, collectively form the agreement by and between Cloud Assess and Client (Agreement) that governs the Client’s use of the Cloud Assess System and the provision of the Products and Services.
(b) This Agreement is binding on the parties and deemed to be validly executed on the earlier to occur of the following:
(i) the Client receives a copy of these T&Cs and the other applicable Agreement documents, either in hard copy, electronically or by being provided with a hyperlink to them, and the Client then proceeds to log into or otherwise use the Cloud Assess System or the Products and Services; or
(ii) both parties have signed, either electronically or in hard copy, a document referencing these T&Cs (including an Application Form).
(c) Capitalised terms not otherwise defined in these T&Cs have the meanings ascribed in clause 2(a).
(d) If any provision of the Agreement conflicts with or is inconsistent with any other provision of the Agreement, then the following order of precedence shall apply:
(i) the Application Form;
(ii) the Price List;
(iii) these T&Cs; and
(iv) any schedules or documents attached to or expressly incorporated by reference into any of the above documents.
(e) The Authorised Representative is authorised to represent the Client, and Cloud Assess may treat any statement, act or omission of the Authorised Representative as a statement, act or omission of Client.
2. DEFINED TERMS
In this document, the following words and phrases have the following meanings:
Agreement has the meaning given in clause 1(a).
Application Form means the hard copy or electronic application form (as specified by Cloud Assess from time to time) that outlines the party details and other commercial details (such as the Product and Services being obtained, Price List and Discounts, and any Minimum Term, or whether the Client is obtaining a Trial Service) and which references, incorporates or attaches these T&Cs.
Authorised Representative means the Client representative(s) nominated in the Application Form, as may be amended during the Term by the Client on written notice to Cloud Assess;
Client means the entity identified in the Application Form as a customer of Cloud Assess;
Cloud Assess means Cloud Assess Pty Ltd ACN 164 642 684;
Cloud Assess System means the web based application and associated online solutions including all Products and Services, forms, templates and any other products and services offered and associated with Cloud Assess;
Commencement Date means the date specified as the commencement date in the Application Form or if no date is specified, the earlier of the two dates specified in clause 1(b);
Confidential Information means all of the Information, other than any part of the Information that:
(a) is or becomes generally available to the public other than as a result of a breach by the receiving party of this Agreement;
(b) was known to the receiving party or any of its officers, representatives, employees or advisers (as evidenced by written records of the receiving party made prior to the time the Information is disclosed to the receiving party) on a non-confidential basis before the receiving party received the Information; or
(c) becomes available to the receiving party or any of its officers, representatives, employees or advisers on a non-confidential basis from another source not in breach of an obligation of confidence owing by that source to the disclosing party (of which the receiving party was aware or ought to have been aware);
Discount means the discounts (if any) specified in the Application Form;
End User Agreement means the legally binding agreement between Cloud Assess and a User who has been provided access to the Cloud Assess System by the Client, as set out at https://www.assessapp.com (as may be updated by Cloud Assess from time to time on notice to the User including within the Cloud Assess System);
Fees mean the fees and charges payable by Client under this Agreement, as set out in or determined in accordance with the Application Form;
Force Majeure Event means an event or circumstance over which a party could not reasonably have exercised control including, but not limited to, an act of God; fire; lightning; explosions; flood; subsidence; insurrection or civil disorder or military operations; sabotage; acts of terrorism; telecommunications infrastructure or network failures; government sanctioned restrictions and orders; epidemics and pandemics; strikes; lock-outs or other industrial disputes of any kind;
Information means, in respect of a party (disclosing party), all information disclosed or made available by or on behalf of the disclosing party to the other party (receiving party) or its Personnel in connection with this Agreement including without limitation:
(a) marketing and technical information;
(b) customer, supplier, sales and receivables information;
(c) the details surrounding assessment practices, Intellectual Property and copyright material of the disclosing party;
(d) the processes, mechanisms and methodologies used by the disclosing party in its business; and
(e) all financial information relating to the disclosing party,
whether disclosed in writing, orally or by any other means and whether directly or indirectly;
Infringement Claim means a claim or proceeding alleging that the receipt or use of any of the Cloud Assess System or the Products and Services infringes the Intellectual Property rights of any third party;
Intellectual Property means any intellectual property rights anywhere in the world including existing and future copyrights, patents, trade marks, service marks, trade names, designs and domain names (whether registered or not and whether registrable or not) including know-how and confidential information;
Internal Account Contact means the person identified as such in the Application Form, as may be amended during the Term by the Client on written notice to Cloud Assess;
Minimum Term means the minimum commitment period set out in the Application Form (if any);
Package means the package(s) selected and specified in the Application Form;
Package Inclusions means the details of what is included in the fee for a particular Package, for example the number of Users entitled to utilise the Cloud Assess System, as specified in the Application Form;
Pay On Time Discount means the discount applied to the initial invoice and a subsequent invoice as a reward for paying the previous invoice on time. May or may not apply depending on the terms of the Application Form;
Payment Terms means the payment terms specified in the Application Form or if no payment terms are specified for a particular Fee or amount payable under this Agreement, Cloud Assess may invoice the amount monthly in advance and must be paid by Client within 14 days of receipt of an invoice;
Personnel means directors, officers, employees, agents, contractors and sub-contractors of a party or its related bodies corporate. In the case of Cloud Assess, Personnel also includes third party suppliers (including cloud service providers) that it may utilise to provide and host the Cloud Assess System and associated data;
Price List means Cloud Assess’ current price list from time to time, initially as set out it, attached to or incorporated by reference into the Application Form;
Product and Services means the products and services and other features and functionality provided by Cloud Assess to the Client and its Users in connection with this Agreement (whether via the Cloud Assess System or otherwise), as set out in the Application Form;
Term has the meaning given in clause 3(a);
T&Cs has the meaning given in clause 1(a);
Trial Service means a one-time trial of the Cloud Assess System and associated Products and Services, which applies if indicated in the Application Form;
Trial Service Start Date means the date specified in the Application Form as the start date for the Trial Service (or if no start date is specified in the Application Form, is deemed to be the Commencement Date);
Trial Service Term means the period of time specified in the Application Form during which the Client may utilise the Trial Service (or if no trial period is specified in the Application Form, is deemed to the period of 30 days following the Trial Service Start Date);
Rates means the rates set out in the Price List;
SCORM Functionality means the ability to upload and assign SCORM packages for use by Users within the Cloud Assess System;
Unauthorised User means a person other than a User, that has gained unauthorised access to the Cloud Assess System using the access codes of a Client or User;
Usage Data means data that are generated by or derived from the Client’s (and its Users’) use of the Cloud Assess System and which is used and processed for Cloud Assess’ development, improvement, monitoring, maintenance, security and auditing of its products and services, and similar technological operational purposes; and
User means any individual that the Client has authorised to access the Cloud Assess System or a learner with an active enrolment. These include Users classified or nominated as administrators, assessors, learners, third parties and/or power users.
3. TERM, PROVISION OF SERVICES AND TRIAL SERVICES
(a) The Agreement is deemed to be effective on the Commencement Date and:
(i) continues for the Minimum Term (if applicable); and
(ii) once the Minimum Term has expired (or if no Minimum Term is specified in the Application Form), continues until this Agreement is terminated pursuant to clause 12,
(b) Subject to and in consideration for payment of the Fees, during the Term Cloud Assess will provide the Products and Services to the Client as specified in the Application Form in accordance with and subject to the terms of this Agreement.
(c) Where the Client has subscribed to a Trial Service:
(i) the Trial Service will commence on the Trial Service Start Date and will continue until the expiry of the Trial Service Term;
(ii) no fees are payable by the Client for the use of the Trial Service during the Trial Service Term;
(iii) to the extent permitted by applicable law and subject to clause 13.2, the Trial Service is provided “as is”, any express warranties in this Agreement do not apply to use of the Trial Service and Cloud Assess is not liable for any damages or loss caused as a result of the Client’s use of, or reliance on, the Trial Service; and
(iv) if Client wishes to use the Cloud Assess System following the Trial Service Term:
(1) the Client must, before the end of the Trial Service Term, upgrade to a full (paid) subscription by selecting an account size and facility appropriate to its requirements (and specify such other details required by Cloud Assess relevant to the chosen subscription, such as a Minimum Term, package selection and payment frequency);
(2) the Client must pay the applicable Fees for the subscription it has selected; and
(3) this Agreement will be deemed amended to reflect the subscription option and other details selected by the Client pursuant to this clause.
4. AMENDMENTS TO PRODUCTS AND SERVICES, PRICE LIST AND T&Cs
4.1. MODIFICATIONS TO PRODUCTS AND SERVICES
(a) Client acknowledges that the Cloud Assess System is a software as a service platform and is continually being further developed and refined, and Cloud Asses has the right to change how it operates and its functionality from time to time.
(b) Client or its Users may notify Cloud Assess of ideas, suggestions and improvements to the Cloud Assess System and the Products and Services (improvements) including via written notice. Cloud Assess is not obliged to adopt or make any such improvements, but if it does, Client hereby grants Cloud Assess a perpetual, world-wide, royalty-free licence (including the right to sub-licence) to use, commercialise and exploit any such improvements.
(c) Cloud Assess will provide written notification of material modifications it implements to the Cloud Assess System and/or Products and Services. This notification will be in the form of an email to the Authorised Representative or Users of the System.
(d) Some modifications to Products and Services that are implemented will be included within the Client’s current Package at no additional cost. Other modifications to Products and Services (such as new features) will be offered to the Client at an additional fee and will be optional. It is at the absolute discretion of Cloud Assess which modifications will be included in the Client’s current Package or charged for as an optional extra. The Fees applicable to new features will be as set out in the Price List.
4.2 CHANGES TO T&Cs AND PRICE LIST
(a) Cloud Assess may make reasonable modifications to these T&Cs, Fee structure, the Products and Services and the Price List (change) from time to time. Other than operational modifications to Product and Services (which are notified to Client in accordance with clause 4.1), a change will be notified in writing by email to the Client’s Authorised Representative at least 14 days prior to the effective date of the change (change notice).
(b) If a change in a change notice:
(i) materially adversely affects Customer’s rights or obligations under the Agreement; or
(ii) results in a material degradation in the Products and Services (or removes material functionality), including material degradation to the service levels or performance,
then Client may object to the proposed change in writing to Cloud Assess within 14 days after receipt of the change notice.
(c) If Client does not object to a change notice within 14 days after receipt of the change notice, then the terms of the change notice shall be effective on the date set out in the change notice (such date, being the “change effective date”), provided that the change effective date must be no less than 14 days after the date of the change notice.
(d) Unless Cloud Assess agrees in writing to Client’s objection, then Client may elect to terminate the Agreement on 14 days written notice to Cloud Assess (provided it exercises this right within 14 days of receiving the change notice).
(e) If Client validly terminates this Agreement pursuant to clause 4.2(d):
(i) the changes in the change notice will not apply to Client;
(ii) the Client will not be liable for any early termination fees even if it had committed to a Minimum Term that was yet to expire; and
(iii) Cloud Assess will provide Client with a pro-rata refund of any Fees that relate to the period following the effective date of termination which the Client had paid in advance but which it was not able to utilise.
5. CLOUD ASSESS OBLIGATIONS
5.1 QUALITY AND SERVICE
(a) Cloud Assess will provide the Products and Services:
(ii) to a reasonable standard and quality; and
(iii) with integrity and professionalism.
(b) Cloud Assess will ensure that Products and Services are developed in accordance with internal quality control systems that are consistent with industry practices to minimise the occurrence and severity of defects.
5.2 CLIENT SUPPORT
(a) All support requests raised by the Client will be managed through the embedded chat help desk, which the Client has access to by emailing firstname.lastname@example.org or through the portal integrated within the system.
(b) All standard Users (assessors, administrators and power users) are entitled to unlimited email/in app support. Student support must be filtered through the Client and raised by a standard User.
(c) All support requests raised will be provided with a non-automated response within 1 working day. Cloud Assess aim to respond to and resolve issues within 2 hours.
(d) Cloud Assess reserves the right to withhold support to a Client or any User if the Client is past due on invoices or any have any monies due on their account that remains unpaid.
5.3 CLOUD ASSESS WARRANTIES
(a) Cloud Assess will not assign or novate its rights and obligations under this Agreement to any third party without providing written notification to the Client.
(b) Cloud Assess warrants that if it utilizes third party providers or sub-contractors, it will ensure that it has terms and conditions in place with such providers that are consistent with Cloud Assess’ obligations under this Agreement relating to Intellectual Property, confidentiality and privacy.
(c) Cloud Assess cannot warrant that the Products and Services provided will be uninterrupted. In addition, Cloud Assess cannot be responsible for any interruption to the Products and Services due to a Force Majeure Event or Client IT issue.
5.4 DOWNTIME MAINTENANCE
Cloud Assess are committed to achieving a service uptime of 99.98% or higher. Scheduled downtime, when practicable, will be performed at times when use on the Cloud Assess System is at a minimum (10pm to 4am AEST). All scheduled downtime will be communicated to affected Users 1 day in advance by email, wherever possible.
6. CLIENT OBLIGATIONS
(a) It is the responsibility of the Client to ensure that the Cloud Assess System satisfies their business requirements and to comply with any laws applicable to it in connection with the operation of its business.
(b) The Client may not transfer use of the Cloud Assess System to any other party, or grant access to or use of the Cloud Assess System to any other party, other than a User without first obtaining written permission from an authorised representative of Cloud Assess.
(c) The Client must provide an Internal Account Contact for Cloud Assess to liaise with for matters relating to invoicing and payment of Fees. The Client must also nominate at least one“Authorised Representative who will be the point of contact for enquiries relating to functionality, assessment development/amendments and Product and Service use.
(d) The Client is responsible for the performance of the Client’s hardware, the suitability of the hardware, the capability of the Client’s staff to use such hardware or the performance of the Client’s internet services.
(e) The Client must ensure that the Client’s Users access the Cloud Assess System through a recommended browser, those being Safari, Chrome, Firefox, Microsoft Edge or Internet Explorer (version 10+), all of which are free to download and use, or the Cloud Assess System iOS app.
(f) The Client is responsible for ensuring that User accounts and passwords are not shared with any other person and that each User has access to a unique email account which is to be used as their account username. Access to the Cloud Assess System for each User is subject to the Users’ acceptance of the End User Agreement and Client must procure that its Users comply with the End User Agreement. Any acts and omissions of a User in connection with its use of the Cloud Access System is deemed to be an act or omission of Client under this Agreement.
(g) Client storage requirements associated with the use of the Cloud Assess System are subject to a fair use such that storage space required does not exceed 2Gb per User. Significant storage in excess of these allocations may result in Cloud Assess requiring recovery of associated costs from the Client plus 20%.
(h) Client’s use of the Cloud Assess System (and Products and Services) is subject to the limitations and usage restrictions set out in the Application Form (including restrictions on the number of Users and the use of the SCORM Functionality). Use outside these limits by Client or its Users is subject to additional Fees as set out in the Application Form.
(i) If Client utilises the Products and Services to send SMS messages, the Client must pay Cloud Assess additional fees in accordance with the Application Form.
(j) In order for the Client account to be established and ready for use the Client will need to provide Cloud Assess with good quality images and logos. By providing these logos and images the Client authorises Cloud Assess to use these graphics and images in association with the Cloud Assess System and the Product and Services, guarantees that the graphics or images belong to or are licensed to the Client for its use, and also indemnifies Cloud Assess for any Intellectual Property breach associated with the use of images or graphics provided by the Client or a User under this Agreement.
(k) The Client must not (and must ensure its Users do not):
(i) copy, modify, add to, adapt, delete or amend any part of the Cloud Assess System;
(ii) sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan or otherwise distribute all or part of the Cloud Assess System, or any adaptation, modification or derivative of all or part of the Cloud Assess System;
(iii) reverse engineer, disassemble, or decompile any software forming part of the Cloud Assess System, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law;
(iv) use the Cloud Assess System for any unlawful purpose;
(v) allow third parties to do anything inconsistent with the terms of this Agreement; or
(vi) share access or passwords with other parties.
7. MISCELLANEOUS SERVICES
Upon written request from the Client, Cloud Assess will provide training, consulting support, digitisation support and other services to the Client and/or the Client’s Users. Any services provided by Cloud Assess is at the sole cost of the Client, and the Client must pay to Cloud Assess the applicable Fees which are to be determined on a time and materials basis based on the Rates and are payable within 14 days of receipt of an invoice, unless alternative payment terms are agreed by the parties.
8. INTELLECTUAL PROPERTY, COPYRIGHT & OWNERSHIP
(a) Nothing in this Agreement affects the existing rights to title and Intellectual Property rights of the Client or Cloud Assess and its licensors in any material existing before the commencement of this Agreement.
(b) Any material uploaded into the Cloud Assess System on behalf of or by the Client or its Users such as assessment products and material remains the property of the Client, and you permit Cloud Assess and its Personnel to use, copy and process such material for the purposes of providing the Cloud Assess System and as otherwise required for Cloud Assess to perform its obligations and exercise its rights under this Agreement. If the material is used by the Client under a licence, the Client warrants that they have been granted the right to use that material and the licence terms permit the Client to make that material available to Cloud Assess and its Personnel for use as contemplated by the terms of this Agreement, and Client indemnifies Cloud Assess against any loss or damage suffered or incurred by Cloud Assess and its Personnel arising out of any breach of this warranty, and in relation to any allegation against Cloud Assess or its Personnel by a third party that the use of such material in accordance with this Agreement breaches third party rights (including Intellectual Property rights).
(c) Client agrees that all Intellectual Property associated with the Cloud Assess System, including the structure and infrastructure of coding of the Cloud Assess System, and the Usage Data, remains the sole property of Cloud Assess and its licensors and neither the Client nor any User has any claim to any share in those rights. The Client must not, and must ensure that none of its Users, do anything which jeopardises or interferes with Cloud Assess’ or its licensors’ ownership of such Intellectual Property. Client acknowledges and agrees that Cloud Assess may use for any purpose Usage Data provided that if any such Usage Data is used for an external purpose (such as provision of reports that utilise or are based on such Usage Data), it must not identify Client or any User without their prior written consent.
(d) Cloud Assess agrees to indemnify Client from and against any damages finally awarded or settlement agreed as a result of an Infringement Claim against Client, provided that:
(i) Client notifies Cloud Assess promptly of any such Infringement Claim;
(ii) Cloud Assess is given sole control of the defence and/or settlement of the Infringement Claim (and prior approves any settlement); and
(iii) Client fully co-operates and provides all reasonable assistance to Cloud Assess in the defence or settlement of the Infringement Claim.
(e) Cloud Assess will have no obligation under sub-clause (d) to the extent that an Infringement Claim is based on or arises out of:
(i) any use of the Cloud Assess System, or the Products and Services, by Client or a User in breach of the Agreement;
(ii) the combination, operation or use of the Cloud Assess System or the Products and Services with other data, products, software, processes, materials or services not provided or authorised by Cloud Assess, if such infringement would have been avoided in the absence of such combination, operation or use;
(iii) modification of the Cloud Assess System or the Products and Services by a party other than Cloud Assess or its authorised sub-contractors; or
(iv) material uploaded into the Cloud Assess System on behalf of or by the Client or its Users.
(f) This clause will survive the termination of this Agreement.
9.1 OBLIGATION OF CONFIDENTIALITY
(a) A party (receiving party) must:
(i) not directly or indirectly, use or attempt to use any Confidential Information of the other party (disclosing party) in any manner which may injure or cause loss either directly or indirectly to the disclosing party or which may be likely to do so; and
(ii) keep the disclosing party’s Confidential Information confidential and not disclose it to any person, other than the disclosing party, or as permitted under clause 9.2 or 9.3.
(b) Notwithstanding the remainder of this clause, Cloud Assess and its Personnel may use Client and User Confidential Information for the purposes of operating and providing the Cloud Assess System and performing its obligations under this Agreement.
9.2 PERMITTED DISCLOSURE
Notwithstanding clause 9.1, a party (receiving party) may disclose Confidential Information of the other party (disclosing party):
(a) to the receiving party’s Personnel who have a need to know the Confidential Information for the purposes of this Agreement, provided they agree to keep it confidential on terms consistent with this Agreement;
(b) to the receiving party’s professional advisers, auditors, and insurers provided they are subject to an obligation of confidentiality and agree to only use the Confidential Information for the purposes of advising the receiving party and for no other purpose; and
(c) where the receiving party has obtained the prior written permission of the disclosing party, and such permission may be given subject to additional conditions.
9.3 DISCLOSURE REQUIRED BY LAW
A party (receiving party) may disclose Confidential Information of the other party (disclosing party):
(a) if required to make such disclosure by any court of competent jurisdiction or in order to enforce any rights under this Agreement in any proceedings;
(b) pursuant to any court order but only to the extent necessary to comply with that court order;
(c) pursuant to any law or regulation having the force of law but only to the extent necessary to comply with that law or regulation; and
(d) pursuant to any requirements of any stock exchange on which securities in the receiving party are listed but only to the extent necessary to comply with those requirements,
provided that the receiving party gives notice to the disclosing party as soon as practicable after it becomes aware of the need to make disclosure under this clause 9.3.
9.4 INJUNCTIVE RELIEF
Each party acknowledges that monetary damages alone would not be adequate compensation to any other Party for a breach of clause 9 and that any other party is entitled to seek an injunction from a court of competent jurisdiction if a party fails to comply or threatens to fail to comply with clause 9.
(a) As a function of the use of the Cloud Assess System, personal information of the Authorised User(s), Internal Account Contact(s) and Users, including students, trainers and assessors, administrators and power users, will be recorded in the system. Such information includes email addresses, names, ID numbers and photographs.
(b) If Client, Client’s Personnel or any Users upload any personal information to the Cloud Assess System, Client warrants that it has obtained all necessary consents and made all notifications required by law to permit Cloud Assess and its Personnel to collect, use, store and otherwise process such personal information for the purposes of providing the Cloud Assess System and to perform its obligations under this Agreement. Cloud Assess will not disclose or share any personal information with any third party (other than its Personnel) without written consent from the Client, unless required to do so by law. If reasonably practicable, Cloud Assess will notify the Client if disclosure of personal information is required by law.
(c) Cloud Assess will take reasonable steps consistent with those required by applicable privacy laws to keep the personal information it holds reasonably secure from misuse, interference and loss and against unauthorised access, modification or disclosure. Cloud Assess will not use personal information provided by Client, Client’s Personnel or Users in any way other than to support the provision of Cloud Assess System and the Products and Services and to perform its obligations and exercise its rights in accordance with the terms of this Agreement.
(d) For training and quality control purposes phone conversations with Client Personnel may be recorded. Cloud Assess Personnel or systems will advise for and/or infer consent to these recordings if Client Personnel, given the opportunity, do not withdraw consent to be recorded via the Cloud Assess representative they are in dialogue with.
(e) Each party agrees to comply with any applicable laws with respect to the use and disclosure of personal information it receives, discloses or accesses in connection with this Agreement, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles in respect of that information.
11. FEES AND PAYMENT TERMS
(a) The Fees payable for the provision of the Products and Services, and any associated charges, are as set out in the Price List.
(b) Cloud Assess reserves the right to make reasonable changes to the fee structure and Price List, and if it does so will notify Client in accordance with the process in clause 4.2.
(c) If the Client is or becomes entitled to any Discounts, the Fees chargeable to Client will be determined by reference to the Price List and adjusted to reflect any applicable Discount at the time of invoicing. The Client agrees to pay the applicable Fees in accordance with the Payment Terms.
(d) Cloud Assess has the right to suspend Client’s access to the Products and Services and/or access to Client’s account and records until any overdue Fees (including applicable interest) are paid in full.
(e) Fees for storage of records and provision of the Products and Services will continue to accrue during any period of suspension of access to the Cloud Assess System.
(f) Cloud Assess reserves the right to charge interest at a rate of 20% per annum (or if this exceeds the maximum interest rate permitted by law, the maximum percentage interest rate permitted by applicable law) on any amount unpaid in accordance with the Payment Terms calculated daily from the due date until the date the unpaid amount is paid in full.
(g) Cloud Assess may also charge an administration fee for an unsuccessful credit card charge attempt, if that payment method is selected, as well as a surcharge fee for payments made by credit card, at the rates set out in the Application Form.
(h) In the event that non-payment results in the suspension of a Client account, then an account re-activation fee (as set out in the Application Form) will apply and must be paid by the Client before the Client’s access to the Cloud Assess System will be re-activated.
(i) The prices and charges in the Price List and Application Form are exclusive of GST, and have already been reduced to reflect the Pay On Time Discount unless otherwise expressly stated.
(j) The Pay On Time Discount is applied to the first invoice. Provided that the Client has paid the immediately preceding invoice on or before the due date for payment, the Client is entitled to the Pay on Time Discount in the next invoice. If the Client fails to pay an invoice on or before the due date for payment, the Client will not be entitled to the Pay On Time Discount in the next invoice.
(k) Debts that fall outside of agreed terms will be referred to debt recovery services at the discretion of Cloud Assess management, and the Client agrees to pay all collection costs, interest and expenses, including commission on any unpaid accounts.
12. TERMINATION AND SUSPENSION
(a) Where the Client is only subscribed to a Trial Service, the Agreement will terminate at the end of the Trial Service Term if the Client does not elect to transfer to a paid subscription account in accordance with clause 3(c)(iv) by the end of the Trial Service Term.
(b) Provided that any Minimum Term has expired, either party may terminate the Agreement by providing at least 30 days’ notice in writing to the other party and the Agreement will terminate on the expiry of the subscription period for which the Client has already paid for in advance (for example, if the payment frequency is quarterly and Client elects to terminate at the end of the first month of a quarter it has paid for, the Agreement would terminate in a further two months at the end of that quarter).
(c) Cloud Assess may suspend the Client’s (or one or more User’s) account and access to the Cloud Assess System immediately on written notice to Client if at any time at its absolute discretion if:
(i) the Client breaches any provision of this Agreement;
(ii) it is necessary to repair, maintain or protect the integrity of the Cloud Assess System, or to otherwise prevent a contravention of law or infringement of third party rights;
(iii) to the extent permitted by law, the Client becomes the subject of bankruptcy, liquidation or winding up proceedings, has a receiver or administrator appointed, threatens to become insolvent or is unable to pay its debts when they become due and payable (Client insolvency event); or
(iv) a User is in breach of the End User Agreement.
Cloud Assess may also terminate the Agreement immediately on written notice to Client if there is a Client insolvency event or if it notifies the Client of a breach of the Agreement or End User Agreement and that breach is either not capable of being rectified or if it can be rectified, is not rectified within 14 days of the Client being notified of the breach.
(d) The Client may terminate this Agreement:
(i) on written notice to Cloud Assess if Cloud Assess has committed a material breach of the Agreement and that breach is not rectified within 30 days of Cloud Assess being notified in writing of the breach; or
(ii) if Cloud Assess becomes the subject of bankruptcy, liquidation or winding up proceedings, has a receiver or administrator appointed, threatens to become insolvent or is unable to pay its debts when they become due and payable.
(e) On termination of this Agreement, the Client must immediately cease all further use of the Cloud Assess System and permanently delete or remove any Confidential Information of Cloud Assess in its possession. It is the responsibility of the Client to ensure that all of their records are removed from the Cloud Assess System before access is no longer available (30 days after written notice). All Client records held by Cloud Assess can be provided by Cloud Assess in electronic format subject to payment of the applicable charges set out in the Price List, but this will only be done if the Client makes such a request to Cloud Assess in writing within 30 days following the date of termination, at which time Client agrees that Cloud Assess will permanently delete any Client materials and records (but may retain any materials and records that it is required to retain by law).
(f) Except where otherwise expressly stated in the Agreement and to the extent permitted by applicable law, the Fees are non-refundable. Only Cloud Assess directors are approved to authorise any refunds and they must be in writing. Any refunds are strictly at the discretion of Cloud Assess directors.
(g) Termination of this Agreement does not affect any accrued rights or remedies of either party under this Agreement.
13. INDEMNITY AND EXCLUSIONS AND LIMITATIONS OF LIABILITY
The Client indemnifies Cloud Assess, its related bodies corporate and their Personnel (those indemnified) and must keep them indemnified against all loss, actions, proceedings, cost and expenses (including legal fees), claims and damages that any of those indemnified suffer or incur arising directly or indirectly out of or in connection with:
(a) any software virus introduced by the Client, a User or an Unauthorised User or contracted by a Client or User;
(b) any unauthorised installation, use, access, copying, reproduction, and/or distribution of any portion of the Cloud Assess System by the Client, any related body corporate of the Client, a User, or Unauthorised User;
(c) any claims or allegations against any of those indemnified that any material (including personal information) uploaded into the Cloud Assess System by or on behalf of the Client, a User or an Unauthorised User, or the use of such materials by or on behalf of Cloud Assess in accordance with this Agreement, infringes any third party rights (including Intellectual Property and privacy rights) or breaches any laws;
(d) any failure of the Client to remove any records or personal information of User’s from the Cloud Assess System following suspension or termination of this Agreement;
(e) any breach of this Agreement by the Client;
(f) any suit, claim or demand brought or made against Cloud Assess by or due to the Client’s or a User’s conduct, acts or omissions; or
(g) any breach by a User of the End User Agreement.
13.2 CONSUMER GUARANTEES
(a) In this Agreement, “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of state and territory fair trading legislation and the terms “Consumer” and “Consumer Guarantees” have the meaning given to them in the Australian Consumer Law.
(b) The Australian Consumer Law provides Consumers with a number of protections including the Consumer Guarantees that cannot be excluded, restricted or modified. Nothing in this Agreement has the effect of excluding, restricting or modifying a Consumer’s rights under the Australian Consumer Law or any other statutory rights which cannot be excluded, restricted or modified. However, where the Australian Consumer Law permits a supplier of goods or services to limit its liability for a failure to comply with a Consumer Guarantee, Cloud Assess limits its liability in accordance with clause 13.3(b)(ii).
13.3 EXCLUSION OF WARRANTIES
(a) All implied terms, conditions, guarantees and warranties which otherwise might apply to or arise out of this Agreement are excluded other than:
(i) those set out in the terms of this Agreement; and
(ii) any term, condition, guarantee or warranty which cannot lawfully be excluded or modified by agreement including those under the Australian Consumer Law (Non-Excludable Terms).
(b) To the maximum extent permitted by law (but subject to clause 13.2):
(i) Cloud Assess does not warrant that the Products and Services will be error free, or that Client’s use of them will be uninterrupted, or that they will meet the Customer’s requirements; and
(ii) if Cloud Assess is liable for a breach of a Non-Excludable Term, where it is lawfully permissible to limit liability for such Non-Excludable Term, Cloud Assess’ liability is limited (at its option, acting reasonably) to:
(1) in the case of services, supplying the services again or payment of the cost of having the services supplied again; and
(2) in the case of goods, replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
13.4 EXCLUSIONS AND LIMITATIONS OF LIABILITY
To the maximum extent permitted by law (but subject to clause 13.2):
(a) Cloud Assess will not be liable to the Client, in respect of any claim arising under or in connection with this Agreement in contract, tort (including negligence) statute or otherwise, for:
(i) any loss of profit, data, goodwill or business, for any interruption to business, for any failure to realize anticipated savings, for the cost of procurement of substitute software or services or for any consequential, indirect, exemplary, special, punitive or incidental damages, even if Cloud Assess has been advised of the possibility of such loss, cost or damages;
(ii) any disruption to or unavailability, or failure of the Cloud Assess System or interference with or damage to any software, hardware, electronic systems and/or devices;
(iii) errors, omissions or inaccuracies contained in any information published on the Cloud Assess System or supplied by Cloud Assess to the Client or Authorised Representative via email or otherwise;
(iv) any software virus contracted by the Client, a User or an Unauthorised User;
(v) as a result of any fraudulent use, misuse or misappropriation of or any part of the Cloud Assess System by the Client, a User or an Unauthorised User;
(vi) as a result of any act committed by another person in connection with access to the Cloud Assess System by any Client, User or Unauthorised User; or
(vii) arising from any circumstance beyond the control of Cloud Assess; and
(b) Cloud Assess limits its total aggregate liability to the Client for any loss or damage of any kind suffered or incurred by the Client, whether arising in contract, tort (including negligence), under statute or otherwise arising under or in connection with this Agreement, to an amount equal to the Fees paid by the Client under this Agreement for the 12-month period immediately preceding the event to which the liability relates.
13.5 EXCLUDED CIRCUMSTANCES
The limitations and exclusions of liability under clauses 13.4 do not apply to limit or exclude Cloud Assess’ liability under the IP infringement indemnity in clause 8(d) or liability for:
(a) Cloud Assess’ gross negligence or wilful misconduct;
(b) death or personal injury that is caused by the negligence of Cloud Assess when on the Client’s premises;
(c) loss of, or damage to, any real or personal property that is caused by the negligence of Cloud Assess when on the Client’s premises;
(d) fraud or fraudulent misrepresentation by Cloud Assess; or
(e) liability that cannot be lawfully excluded or limited.
14. DISPUTE RESOLUTION
(a) If a dispute arises between the parties then the parties agree to use their best endeavours to resolve such dispute within a period of 7 days from the time either gives to the other written notice of the dispute.
(b) If a dispute arises and has not been resolved in accordance with the clause above then, provided that such dispute arises out of or relates to this Agreement or the breach, termination, validity or subject-matter of this Agreement, the parties agree to use their best endeavours to settle the dispute by mediation by a mediator appointed by the President of the Queensland Law Society.
(c) Other than to claim urgent injunctive relief, a party may not institute proceedings against the other party arising out of or related to this Agreement unless that party has first complied with the clauses above.
15.1 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law of Queensland Australia and each party irrevocably and unconditionally submits to the nonexclusive jurisdiction of the courts of Queensland Australia.
Any indemnity, exclusion of liability or any obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.
15.3 NO MERGER
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
15.4 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
15.5 FURTHER ACTION
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.
A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement continue in force.
Cloud Assess does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by Cloud Assess.
Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
15.9 FORCE MAJEURE
No party is liable for any failure to perform or delay in performing its obligations under this Agreement if that failure or delay is due to a Force Majeure Event. If that failure or delay exceeds 60 days the other party may terminate this Agreement with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay money.
15.10 SECURITY RECOMMENDATIONS
Cloud Assess has internal policies and procedures and system functionality in place to protect the security of the Cloud Assess System and Client data. However, additional practices are available to the Client and Users to provide additional protection. Schedule 1 provides a list of some recommended practices that should be considered by the Client and Users.
15.11 COUNTERPARTS AND ELECTRONIC EXECUTION
(a) This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.
(b) The parties consent to execution of the Agreement via electronic signature. The use of an electronic signature by a party is conclusive of the signing party’s intention to be bound by this Agreement as if physical signing had occurred. Where the Agreement is electronically signed by a party, that party warrants and agrees that the electronic signature has been used to identify the person signing and to indicate that the party intends to be bound by the electronic signature. In this clause, “electronic signature” means a digital signature or a visual representation of a person’s handwritten signature or mark which is placed on an electronic copy of this Agreement by electronic means, and “electronically signed” has a corresponding meaning.
Cloud Assess may subcontract any of its obligations under this Agreement to a third party. If a party sub-contracts its obligations under this Agreement, that party will remain responsible and liable to the other party for the sub-contracted obligations.
Except to the extent otherwise permitted in clause 3(c)(iv) or 4, any other variation of this Agreement is not effective unless made in writing and signed by each party.
(a) Any notices under this Agreement must be given in writing and by email or any other lawful means.
(b) The particulars for delivery of notices are initially, in relation to the Client, as set out in the Application Form and, in relation to Cloud Asses, by email to email@example.com. A party may change their particulars for delivery by notice to the other party.
(c) Subject to sub-clause (d), a communication is given by email when confirmation of delivery is received by the sender which records the time that the email was delivered to the addressee’s last notified email address unless the sender receives a delivery failure notification..
(d) If a communication is given after 5.00 pm in the place of receipt or on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt, it is taken as having been given at 9.00 am on the next day which is not a Saturday, Sunday or bank or public holiday in that place.
In this Agreement the following rules of interpretation apply unless the contrary intention appears:
(a) the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(b) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement or any part of it; and
(c) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a party includes its successors, permitted assigns and permitted persons substituted by novation;
(iii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(iv) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes email transmissions;
(v) a right includes a benefit, remedy, discretion or power;
(vi) time is to local time in Brisbane, Australia; and
(vii) a monetary amount is in Australian dollars.
SCHEDULE 1 – SECURITY RECOMMENDATIONS
Please find below a list of security recommendations. Cloud Assess cannot take responsibility to security risks that are outside of its control. It is highly recommended that the Client consider all the below recommendations and solicit further advice from ICT security professionals.
1. Ensure that all software/applications are kept up to date (e.g. browser, operating system, etc.)
2. Use strong and complex passwords and don’t use the same password for multiple systems/applications. Using a password manager can assist with this
3. Use 2-Factor Authentication
4. Ensure all devices lock after a period of non-use and that they require a passcode/password to unlock
5. Install Anti-virus/firewall/anti-malware software and keep it up to date
6. Think twice before clicking on links found in emails, especially if you don’t know the sender.
7. Think twice and remain critical when opening attachments in e-mails or files downloaded from the Internet