Terms & Conditions
These terms and conditions (“Terms”), together with the 2Cloud Statement of Work constitute a legally binding agreement between you (the Client) and 2Cloud Technology Pty Ltd (ACN 653 527 854) of Level 2, 541 Blackburn Rd – Mount Waverley, VIC 3149 (“2Cloud”), for the provision of website design, website development, custom development, website management and/or other services set out in your 2Cloud SOW effective from the date the last party signs the 2Cloud SOW OR starts using the Services.
We reserve the right, at its discretion, to change or modify all or any part of these Terms and Conditions at any time. Such changes or modifications shall be effective immediately upon notice published on the www.2cloud.com.au site, your continued use of the Service constitutes your binding acceptance of these terms and conditions, including any changes or modifications made by us as permitted above. 2Cloud may choose to not exercise or enforce any right or provision of the Terms and Conditions; in doing so, we are not waiving that right or provision. These terms do contain a limitation of 2Cloud’s liability.
Definition
‘Agreement’ means these Terms, the 2Cloud Statement of Work and any documents, schedules or annexures referenced or incorporated into this agreement as amended from time to time.
‘Statement of Work’ or ‘SOW’ means the 2Cloud Statement of Work signed between you (the Client) and 2Cloud Technology Pty Ltd.
‘Client Content’ means all text, data, graphics files, videos and sound files, and other materials contained in the website or as otherwise owned or created by the Client in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of the Client.
‘Confidential Information’ means and includes any information that by its nature is confidential, is designated by a party as confidential, or the recipient knows or ought to know is confidential but does not include information which:
- is or becomes public knowledge other than by breach of this Agreement;
- is required to be disclosed by law;
- was known by the recipient as at the date of this Agreement;
- has been independently developed or acquired by the recipient without reference to the disclosing party’s Confidential Information.
‘Material’ means information, documents, equipment, software, source code, goods, computer files, designs, transferable knowhow and data, stored by any means, whether or not in material form, and includes any Intellectual Property Rights in such Material.
‘Services Material’ means any Material that is created during the performance of the Services but does not include the Client Content.
‘Intellectual Property Rights’ or ‘IPR’ means all statutory and other proprietary rights in respect of copyright and neighbouring rights (including but not limited to rights in relation to software), all rights in relation to inventions (including registered and not yet registered patent rights), registered and unregistered trademarks, designs, the right to have Confidential Information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Service Inclusions
During the Term, 2Cloud will:
- supply telephone or other electronic support to the Client between the hours of 10:00am – 6:00pm Monday to Friday (“Business Hours”) in order to support Clients enjoyment of the Services;
- provide the services set out in the 2Cloud Services Specifications or Project Scope; and
- provide any additional services which have been agreed to in writing between 2Cloud and the Client, the provision of any additional services are subject to the terms of the Agreement and may incur additional fees.
Service Exclusions
Unless otherwise agreed in writing, 2Cloud has no liability for, and is not required to provide Services if it relates to:
- rectification of lost or corrupted data arising for any reason other than 2Cloud’s own negligence;
- support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Services or the use of the system or operating environment;
- attendance to faults caused by using the Services outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Services, or caused by operator error or omission;
- restoration of data files following failure to backup in accordance with 2Cloud’s recommended procedures;
- diagnosis and/or rectification of problems not associated with the Services;
- damage due to external causes outside 2Cloud’s control including accident, disaster, electrical fault, power surges, lightning, internet connection fault, vandalism or burglary;
- the Client not following 2Cloud or a third party written instructions for the Services;
- the Client’s or its third party’s abnormal use of the Services and/or any repair or damage caused by such misuse; and
- any other Exclusions listed in the 2Cloud Services Specifications or Project Scope.
2Cloud may choose to provide the above services at an additional cost to the Client (which will be invoiced separately).
Provision of the Services
During the Term, 2Cloud will:
- provide the Services to the Client with all due care and skill and in a professional manner consistent with generally-accepted industry standards;
- assist the Client in the establishment of a solution in order to maximise the effectiveness of the Services;
- keep the Clients nominated contact(s) informed of the progress of the Services; and
- inform the Client of any issues, which 2Cloud reasonably believes may impact on the provision of the Services.
Client Obligations
The Client warrants that:
- it owns the rights or has the right to use the Client Content;
- it owns the rights or has the rights to use any software, hardware, systems, IP addresses, domain names and other items in the Clients’ ICT systems and infrastructure (“Infrastructure”);
- its Infrastructure is in good working order and that it has sole responsibility for the availability and integrity of the Infrastructure;
- has put in place sufficient internal controls to ensure the accuracy and integrity of the Client Content;
- it will check the integrity of the Client Content on a regular basis; and
- it will use its best endeavours to comply with its obligations under this Agreement.
During the term, the Client must:
- provide all necessary information to 2Cloud upon request;
- provide access to locations, systems and Infrastructure including relevant passwords and/or data required by 2Cloud in order to perform the Services;
- regularly backup its data, Client Content and/or website and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting any harmful code, and take all reasonable precautions to safeguard its business against loss or disruption.
- cooperate with 2Cloud by providing access to its premises and facilities as reasonably necessary to enable 2Cloud to provide the Services;
- provide other such access, documents, information or data as 2Cloud reasonably requires in order to perform the Services; and.
- comply with the terms and conditions of this agreement.
An approximate timing schedule is provided at the time of the SOW. Failure to provide content or other items within the specified time will delay the delivery of the project.
Ownership
- All Paid/Non-paid platform accounts initially set up by 2Cloud are the property of 2Cloud. Upon termination or expiration of Services or Project, the Client may apply to 2Cloud to transfer ownership of the account which will be granted if no overdue payments apply to the client.
- No Background IPR is transferred by virtue of this Agreement. Each party hereby grants to the other a royalty-free, non-exclusive, non-transferable licence to use its Background IPR for the purposes of this Agreement. For the avoidance of doubt, the Client owns all IPR in the Client Content and grants 2Cloud a royalty-free right to use the Client Content for the provision of the Services and any other additional services that may arise during the Term of this Agreement.
- All IPR in the Services Material is owned by 2Cloud upon creation. Subject to the payment of the Fee, 2Cloud hereby grants the Client a royalty-free, non-exclusive, non-transferable licence to use, modify and adapt the Services Material for the purposes of this Agreement and for its internal business purposes.
- The Client agrees to not copy, reproduce, export or deal in the Services and/or Services Materials or any part of them in any way except as expressly permitted by this Agreement.
- The Client agrees not to decompile, reverse engineer, disassemble or otherwise reduce any part of the Services and/or Services Material to human-readable form nor permit any third party to do so.
- The Client indemnifies, saves and holds 2Cloud harmless from any loss, liability, claim, damage or expense 2Cloud suffers or incurs as a result of the Client’s failure to comply with its obligations under this clause.
Fee and Payment
- 2Cloud’s agreed payment terms for the Client are 14 days. Where the relevant payment(s) have not been made for more than 30 days, 2Cloud will suspend all services until the relevant payment(s) have been made.
- Unless otherwise in writing, Fee does not include goods and services tax (‘GST’). In addition to and at the same time as payment of the Fee, the Client must pay to 2Cloud any GST relating to the Services.
- The Client agree to pay all fees and charges incurred by you or any third party during the term in order to provide Services for the Client (whether or not authorised by you) at the rates in effect for the billing period in which such fees and charges are incurred, including, but not limited to applicable taxes, and charges for any products or services.
- Any disbursements incurred as a result of providing the Services will be reimbursed in full to 2Cloud upon submission of receipts to the Client.
- If there is a change in the scope, timing or order of the Services, then 2Cloud will be entitled to additional payment of any amount which is reasonable in the circumstances.
- The Client agrees to pay any and all costs associated with recovery of debt under this clause including (but not limited to) debt collection, outsourcing and legal costs should Bonfire take legal action through courts of appropriate jurisdiction.
- 2Cloud does not offer refunds on any monthly payments already made where cancellation was requested after the date paid.
- Upon reaching each payment milestone, an email with invoice amount and the due date of payment will be sent. Late payments will incur a weekly fee of 2% of total invoice amount.
Termination and Cancellation
- If the Client discontinues the development of the website at any stage prior to completion, the Client is responsible for any fees associated with the completion of the website as outlined in the Agreement.
- If the Client wishes to cancel the monthly website management services, the Client must give 30 days’ written notice to 2Cloud.
- A termination of this Agreement will not affect the Client’s liability to pay Fees for Services already performed.
Support
If you have a question about any of the Terms and Conditions, please contact our team at admin@2cloud.com.au.