Terms of Service
These Terms of Service outline the terms and conditions, which govern your access to and use of the Services (as defined below) provided by Cloud People Pty. Ltd. ABN 87143012908 its successors and assignees (we, our or us).
By clicking on the “I Agree”, “I Accept”, “Sign up”, “Create an account” or similar button or check box presented with these terms when you place an Order, or if earlier, when you access or use the Services, you agree to these Terms of Service and the Additional Terms which apply to the Additional Services. The legally binding agreement formed between you and us consists of (in order of precedence) the Order, the Additional Terms (if applicable) and these Terms of Service (Agreement). This Agreement starts on the date we accept the Order (Commencement Date) and continues for the Term, unless terminated or extended in accordance with this Agreement. If we reject the Order, we will notify you and will not charge you for the Order.
You represent to us that you are lawfully able to enter the Agreement. If you are entering into the Agreement for an entity, such as the company you work for, you represent that you have authority to bind that entity and you agree that “you” as used in the Agreement includes both you personally and the entity you represent. You must register for an account with us to use the Services. You must keep your account information complete and up to date at all times. When you use the Services, you must comply with applicable laws, our Policies and this Agreement. You must not use the Services:
- for any unlawful activities, or
- to publish any materials, or store any data, files or content, that is/are unlawful, pornographic, defamatory, abusive, insulting, threatening, obscene, inflammatory, offensive or otherwise inappropriate or objectionable.
You are solely responsible for:
- all activity on your account, including activity by the account administrator and any delegates appointed by the account administrator;
- maintaining the confidentiality of your login and password and notifying us immediately of any unauthorized use;
- determining whether the Services are suitable for your needs;
- configuring the Services to meet your requirements;
- backing-up, and ensuring the security of, Your Content, including taking appropriate measures to protect Your Content from accidental, unlawful or unauthorized access, use or disclosure; and
- monitoring your Platform Resources usage. You will be charged for any usage in excess of the limits specified in the Order.
- You can vary the Services at any time by emailing us at [email protected].
Services, service levels and support
We will use reasonable endeavors to provide the Services to meet the Service Levels. If we fail to meet any Service Levels, your sole and exclusive remedy is to claim a Service Credit. We regularly update and carry out scheduled maintenance of the Website, and/or the Heropa Software Platform (Software), so we may have to suspend access to, or functionality on, the Website, and/or the Software from time to time. We will notify you of any scheduled maintenance that may interrupt the Services. If you require any support in relation to the Services, you must log a support ticket by email at the address provided in your contract. We may need to access and use Your Content for the purpose of performing the Services you have ordered (for example, if you ask us to provide Professional Services).
Fees and payment
The Fees will remain fixed during the Term unless:
- you exceed your applicable limits (see ‘Limits’ below);
- you change your Services; or
- otherwise agreed to in the Order.
The Limits that apply to you will be specified in the Order, or in the Agreement, and for our Free Trial, these limits may also be designated only from within the product itself. We will charge you:
- in advance for the Fees applicable to the Services in the Order;
- monthly in arrears for the Fees applicable to your consumption of Platform Resources exceeding your Limits and any Professional Services in the prior month and
- immediately for any additional Fees applicable to variations to the Services made in accordance with the Agreement. We will calculate such additional Fees on a pro-rata basis for the remainder of the current Billing Period. The invoicing arrangements for variations will apply from the next Billing Period.
If you reduce the Services in accordance with the Agreement:
- we will not refund, or provide a credit for, any pre-paid Fees for the remainder of the current Billing Period; and
- any variation to the Fees will be reflected from the next Billing Period.
If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. If you are paying by invoice, we will invoice you no more than 45 days before the beginning of the Term and each subsequent Billing Period, and other times during the Term when fees are payable. All amounts invoiced are due and payable within thirty 30 days from the date of the invoice, unless otherwise specified in the Order. If you wish to raise a genuine dispute about an invoice, you must log a support ticket by emails at the address provided in your contract within 3 days of the date of the invoice and pay the undisputed portion by the due date. If you fail to pay an undisputed invoice by the due date, we may reserve the right to charge interest on overdue amounts at the rate of 1.5% per month and/or suspend your account and access to the Services until all overdue amounts are paid. All amounts specified in this Agreement are exclusive of taxes, which we will charge as applicable, unless specified otherwise. You agree to pay any taxes applicable to your use of the Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If GST is payable on any supply made by us under this Agreement, you must pay us an additional amount equivalent to the GST at the time that payment to us is due.
Intellectual property rights
You own all rights, title and interest to Your Content. You grant us a non-exclusive license to use Your Content for the purpose of performing our obligations under this Agreement. We will seek your written approval prior to using your company name and logos for all promotional and publicity purposes. We own all rights, title and interest to the Contract Materials. We grant you a non-exclusive and non-transferable license to use the Contract Materials for the Term.
Limitation of liability
We do not represent or warrant that the Services are entirely secure, uninterrupted or error-free. To the extent permitted by law, we exclude all conditions, terms, representations and warranties other than those expressly set out in this Agreement. Our liability for breach of a statutory guarantee, which cannot be excluded by law is limited, at our option, to either the supply of the services (or equivalent services) again or the payment of the cost of having the services supplied again. You indemnify, defend and hold us harmless against all loss, damage, claims, liabilities, costs and expenses (including legal fees) arising from, or in connection with:
- any claim or demand brought by third parties in relation to Your Content, or your use of, or access to, the Services;
- and any negligent, wrongful, unlawful or fraudulent act or omission or any breach of this Agreement by you or your officers, employees, contractors, agents and service providers.
We exclude liability for:
- any loss or damage to, or unauthorized access to, use or disclosure of, Your Content;
- any costs, expenses, claims, loss, damage or liability suffered or incurred by you as a result of:
- a Force Majeure Event;
- any scheduled maintenance; or
- us complying with your requests or directions;
- any loss of profit, loss of revenue, loss of business opportunities, loss of data and indirect or consequential loss; and
- any delay or non-performance of our obligations under this Agreement as a result of a Force Majeure Event.
- To the extent permitted by law, our aggregate liability in connection with this Agreement whether in contract, tort (including negligence), statute or otherwise will not exceed the Fees paid by you in the 30 days prior the date of the claim.
Term, suspension and termination
The Agreement will automatically renew for successive periods equivalent to the Term on each anniversary of the Commencement Date, except if terminated earlier. You can terminate the Services and this Agreement at any time by emailing us at [email protected]. We will not refund, or provide a credit for, any pre-paid Fees for the remainder of the Term. Without limiting any remedies available to us under this Agreement or at law, we may suspend the Services and/or terminate this Agreement with notice to you if:
- you fail to remedy a breach within 7 days of a notice from us requesting you to do so;
- your Fees are outstanding for more than 7 days past the due date; or
- you become insolvent, bankrupt, enter into administration, are wound up or a receiver or creditor is appointed over any part of your business.
We may terminate this Agreement at any time by giving you at least 90 days’ prior written notice. Provided you are not in breach of this Agreement, we will refund any prepaid Fees applicable to the unused portion of any Services. Upon the expiry or termination of this Agreement for any reason:
- you must pay all outstanding Fees to us and any reasonable costs incurred by us as a result of the termination (including third party cancellation fees and administrative costs);
- you must, at our option, return or securely destroy all Contract Materials; and
- you must immediately stop using, and return to us, all IP addresses supplied to you for your use of the Services.
Changes to services, fees and terms
From time to time, we may modify or discontinue all or any aspect of the Services, the Service Levels, Service Credits, Fees and applicable terms and conditions. We will notify you before the date on which the changes are effective. Your continued use of the Services will constitute your acceptance of the changes.
All notices and consents relating to this Agreement must be in writing. A notice is deemed to have been received:
- if posted by us on the Website, within 6 hours of the time of the post; or
- if sent by email or text message, within 6 hours of delivery being confirmed.
If we need to notify you under this Agreement, we will do so by sending an in-app message, sending an email and/or text message to the email address and/or mobile phone number specified on your account or posting a notice on our Website. If you want to notify us under this Agreement, you must do so by emailing us at [email protected].
Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. We may sub-contract the performance of any part of the Services to any third party or assign this Agreement or any of our rights or obligations under this Agreement. This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications. The failure of either party to enforce any provisions under this Agreement will not waive the right of such party thereafter to enforce any such provisions. If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected. This Agreement is governed by, and construed in accordance with the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
Definitions and interpretation
In this Agreement:
- Additional Services means the optional services specified in the Order or self-provisioned through your account, including Professional Services, Managed Support Services and Managed Backup Services.
- Additional Terms means the Additional Terms applicable to the Additional Services.
- Billing Period means the period for which you agree to prepay fees under an Order, which will be the same as or shorter than the Term. For example, if you subscribe to the Services for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
- Business Day means any day which is not a Saturday, Sunday or a public holiday in Sydney, Australia.
- Client Portal means the Cloud People portal where you can manage your account, including setting up the administrator account, appointing delegates and logging support tickets.
- Commencement Date means the date we accept the Order.
- Contract Materials mean all materials, reports, diagrams, code, processes, methods, specifications, graphics, web portals, IP addresses, and other works created or produced by us arising in connection with the provision of the Services including our Pre-Existing Materials.
- Fees mean the fees payable by you for the Services in accordance with the terms and conditions set out on the Website or in the Order.
- Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery or industrial conditions or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:
- directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this Agreement; and
- is beyond the reasonable control of that party.
- Free Trial means the Services or other products or features made available by us to you on an unpaid trial or free basis.
- GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any regulations made pursuant to that Act.
- Managed Backup Service is defined in the Additional Terms.
- Managed Support Service is defined in the Additional Terms.
- Order means an order for the Services placed by you.
- Platform Resources means the items specified in your Order and measured in the Heropa Platform for billing purposed, including but not limited to Concurrent VLUs, Monthly VLUs, Storage, Regions and Users.
- Professional Services is defined in the Additional Terms.
- Pre-Existing Materials mean any of our materials existing at the date of this Agreement, including all trade marks, designs, design specifications, software, hardware or other documentation and materials used in our business or operations.
- Scheduled Outages is defined in the Service Level Agreement.
- Service Credits means the service credits set out in the Service Level Agreement.
- Service Levels means the service levels set out in the Service Level Agreement.
- Services means:
- the services specified in the Order, self-provisioned through the Software or any other services you ask us to perform; and
- your use of:
- the Website; and
- the Software.
- Service Level Agreement means the Service Levels, Service Credits and Scheduled Outages set out at https://www.heropa.com/legal/service-level-agreement.
- Software means the Heropa Software Platform.
- Term means the term specified in the Order.
- Users means your employees, representatives, consultants, contractors or agents who are authorized to use the Services for your benefit and have unique user identifications and passwords for the Services.
- Website means the website located at https://www.heropa.com/ together with any related websites.
- Your Content means the data, content, software, images, documents, files, information and materials you store on our infrastructure using the Services.
In this Agreement:
- a reference to a person includes a natural person, corporation, unincorporated association or partnership;
- a reference to a party to this agreement includes its executors, administrators, substitutes, successors and permitted assigns;
- the headings in this Agreement are for convenience only and have no legal effect;
- the singular includes the plural and vice versa;
- other grammatical forms of a defined word or expression have a corresponding meaning;
- “including” and similar words do not imply any limitation;
- a reference to any agreement or document is a reference to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time; and
- a reference to a statute includes a reference to that statute as amended or replaced from time to time.
The following Additional Terms apply only to the Additional Services to which the Additional Terms relate. Capitalized terms used in these Additional Terms that are not defined have the meaning given to that term in the Terms of Service. You may request Additional Services at any time by emailing us at [email protected].
Professional Services are consulting services and any other services you ask us to provide which fall outside the scope of the Services, the Managed Backup Services and the Managed Support Services, which may include training services, installation, integration or other consulting services. If you require any Professional Services that can be scheduled in advance:
- we will give you a quote outlining our estimate of the amount of time required to perform the services, and the likely fees and charges based on our current rate card;
- we will perform the services upon your approval of the quote; and
- you acknowledge that the quote is a mere estimate and the final invoiced amount may vary from the quote.
If you require any Professional Services urgently, we will perform the services without first giving you a quote. We will charge for the performance of the Professional Services, and you must pay for such services, on the basis of our current time and materials rates, which may be subject to a minimum spend.
Managed Backup Services
If you order Managed Backup Services, we will restore Your Content to the server or device from which Your Content originated, in the event that Your Content is lost or corrupted. We will provide the Managed Backup Services in accordance with an agreed backup schedule. As soon as practicable after you order the Managed Backup Services, and on a monthly basis thereafter, you must test the operation of the Managed Backup Service to verify that Your Content is captured accurately and completely during backup. You must notify us of any faults in the Managed Backup Services. You acknowledge and agree:
- the quality of the Managed Backup Service depends on the quality of Your Content;
- if your primary server or device hardware fails and is replaced, we may not be able to restore your backed up data exactly as it was configured on the failed device;
- we will backup Your Content for the sole purpose of restoring lost or corrupt data;
- from time to time, we will test our backup systems. You consent to us using a copy of Your Content for such tests.
On the termination or expiry of this Agreement, or if you cancel the Managed Backup Services, we will destroy Your Content, unless we have agreed otherwise.
Managed Support Services
If you order Managed Support Services, we will pro-actively perform preventative maintenance services, such as health checks and security patches on servers. We will perform these services in accordance with the Order.
For questions and notices, please contact us at:
Cloud People Pty. Ltd. ABN 87143012908 Level 26, 1 Bligh Street Sydney NSW 2000 Email: [email protected] Last update: 23 May 2018