CloudScale.io - Terms of Use
This CloudScale.io Services Agreement (Agreement) sets out the terms and conditions on which you or the organisation, entity or any other persons you represent (you/your) may access or use the Services. You must agree to the terms and conditions set out below prior to accessing or using the Services. This Agreement is a legally binding document between CloudScale.io (us/we/our) and you.


1. THE SERVICES

1.1 Access and Use
You agree to access and use the Services in accordance with:

(a) this Agreement;
(b) the SLA; and
(c) any other policies created by us from time to time.

1.2 Account
You will be required to create an Account to access and use the Services. You are responsible for all activities occurring under your Account, regardless of whether the activities were undertaken by you, your employees, agents, contractors or any other third party having access to your Account.

1.3 Your obligations

You:

(a) must use reasonable endeavours to keep your Account password secure and prevent unauthorised access and use of the Services;
(b) must provide notice to us immediately if there is suspected access or use by an unauthorised party, or if an Account is lost, stolen or otherwise compromised;
(c) are solely responsible for all information, data and content stored on, published or accessed through the Services;
(d) are responsible for creating back-ups of its content and data used in relation to the Services; and
(e) must ensure that each person you authorise to use the Account complies with the terms and conditions set out under this Agreement.

1.4 Restrictions

You must not:

(a) share or transfer your Account without our written consent;
(b) act in contravention of the terms of this Agreement or with the laws of any relevant jurisdiction;
(c) lease, rent, resell or sell the Services;
(d) use the Services to disseminate, publish, store or transmit any unlawful material;
(e) interfere with or disrupt the Services or any websites, servers or networks associated with the Services in any manner whatsoever, including, without limitation, using a virus, overloading or flooding the Services, conducting a denial of service attack, or otherwise manufacturing an increased burden on our network or servers;
(f) access, probe or use any non-publicly available areas of the Services, or exploit any vulnerabilities in the system or network, or otherwise breach or circumvent any security or authentication measures;
(g) reverse engineer the Services or any component of the Services; or
(h) access the Services with the intention of building a competitive product or service, or to copy any features, functions or the look and feel of the Services.

1.5 Third Party Products

The Services are intended to interface, or operate in conjunction, with Third Party Products as approved by us from time to time (Approved Products) and you acknowledge and agree that:


(a) Third Party Products are not part of the Services and are owned and operated by third party providers;

(b) your use of Third Party Products is subject to the relevant third party provider’s fees and terms of use. You are responsible for payment of such fees to each third party provider and for compliance with all then current terms and conditions of the Third Party Products;

(c) the full functionality and benefits of the Services may not be available to you if you elect to use Third Party Products that are not Approved Products;

(d) by providing any access codes, passwords or keys for Third Party Products to us, the you authorise us to access any of your applications and infrastructure for the purpose of providing the Services to you. We do not provide any warranties as to the security of its systems to keep the access codes, passwords or keys secure;

(e) Third Party Products may change, become obsolete or unavailable from time to time. We do not provide any warranties or guarantees in relation to Third Party Products used by you and it is your responsibility to conduct due diligence as to the suitability of the Third Party Product’s suitability to meet your needs. To the extent allowed by law, we disclaim all liability in relation to and arising out of the access or use of Third Party Products; and

(f) We may be a reseller of the Approved Products and may obtain financial or other benefits if you subscribe to the Approved Products through us.


1.6 Updates and changes
At our sole discretion we may:

(a) update, change or discontinue any part of the Services from time to time; and
(b) change the terms of this Agreement, SLA and any relevant policies from time to time by publishing the latest version of this Agreement, SLA and any policies on our website.


1.7 Support
We may provide general support through:

(a) the online help centre available on the CloudScale.io website and updated from time to time; or
(b) lodging online support tickets on the CloudScale.io website.

You acknowledge and agree that we do not have any obligation to provide you with technical or other support and do not provide any warranty that:

(c) we will respond within any response time frame, or at all; or
(d) we will be able to identify or resolve your issue/s.



2. FEES AND PAYMENT

2.1 Payment of Service Fee

(a) We will bill you for the Service Fee corresponding to the plan selected by you as described on our website using one of the payment methods offered by us. If you have selected a recurring monthly plan, the Service Fee will be billed monthly in advance while the subscription is active. If you have selected a recurring annual plan, the amount will be billed annually in advance while the subscription is active. All payments to us must be without deduction, set-off, counterclaim or withholding and are final and non-refundable.
(b) If we decide to increase the Service Fee for your plan, we will give you at least 30 days’ notice.
2.2 Taxes
All payments by you are exclusive of any applicable taxes and duties, including GST, VAT or other sales tax. If a deduction is required by law in relation to any taxes or duties, the amount of the payment due to us will be increased to an amount which after making the deduction would leave an amount equal to the amount we would have received if no tax deduction had been required.


3. PROPRIETARY RIGHTS

3.1 Ownership of Services
(a) We retain all rights, title and interest in and to the Services, Confidential Information and CloudScale.io and all related Intellectual Property rights.
(b) You agree to keep confidential all of the Confidential Information

3.2 Limited licence
We grant to you a limited, revocable, non-exclusive, non-transferable and non-sublicensable licence to do the following during the Term:

(a) access and use the Services in accordance with the terms of this Agreement; and
(b) copy and use the CloudScale.io data solely in connection with your permitted use of the Services. Some of the CloudScale.io data may be provided to you under a separate licence, including an open source licence or third party provider’s licence. In the event of a conflict between this Agreement and any separate licence, the separate licence will prevail with respect to that CloudScale.io data.

3.3 Ownership of Customer Data
(a) You will retain ownership in all right, title and interest to the Customer Data. Except as set out under this clause 3.3, we will obtain no rights in relation to the Customer Data. You acknowledge that we may be required to disclose Customer Data to comply with any request of a governmental or regulatory body (including under court order or subpoena).
(b) You grant to us a royalty-free, worldwide, irrevocable, perpetual licence and transferable to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Services.


4. SUSPENSION AND TERMINATION

4.1 Suspension

We may suspend your Account immediately upon written notice if:
(a) your use of the Services:
(i) poses a security risk to the Services or any third party;
(ii) may adversely impact the Services or our systems;
(iii) may subject us or any third party to Liability; or
(iv) may be unlawful;
(b) you are in breach of this Agreement (including, but not limited to, any failure to pay amounts due and owing to us); or
(c) you are the subject of any bankruptcy, liquidation, dissolution, winding up order, insolvency or other similar proceedings.

4.2 Effect of suspension
(a) Upon suspension under clause 4.1:
(i) you remain responsible for all fees and charges incurred to the date of suspension;
(ii) you remain responsible for any fees and charges for Services to which it may continue to have access, as well as for any applicable data storage fees and charges, or fees and charges for in-process takes completed after the date of suspension; and
(b) The right of suspension under clause 4.1 is in addition to our right of termination under clause 4.5.

4.3 Termination by notice
Either party may terminate this Agreement for any reason by providing no less than 30 days’ written notice to the other party. If available, notice may be provided by you under this clause by closing or deactivating the Account on our website.

4.4 Termination by either party
Upon the occurrence of a material breach of the terms of this Agreement, the non-defaulting party may provide notice in writing to the defaulting party:

(a) setting out the details of the breach;
(b) requiring the breach to be remedied within 30 days of the notice; and
(c) terminating this Agreement immediately upon the expiry of 30 days if the breach had not been remedied.

4.5 Termination by us
We may terminate this Agreement immediately by notice in writing if:

(a) any of the circumstances allowing suspension under clause 4.1 occurs;
(b) we are required to cease providing the Services for any reason;
(c) we are no longer able to provide the Services due to the expiry or termination of any arrangement with a third party provider; or
(d) we determine, in our absolute discretion, that it is uneconomical, impractical or unfeasible to continue providing the Services.

4.6 Effect of expiry or termination

(a) Upon the expiry or termination of this Agreement:
(i) you will no longer be entitled to access or use the Services and we may subject to clause 4.6(b) delete the Customer Data stored on its servers, unless otherwise agreed by us;
(ii) any Claim either party may have against the other in respect of anything done or required to be done before the date of termination or expiry are not affected;
(iii) you must pay to us all outstanding fees and charges accrued through the date of termination or expiry;
(iv) you must immediately return or, if instructed by us, destroy all Confidential Information in your possession; and
(v) clauses 2, 3.3(b), 4.6, 5, 6, 7 and 9 shall survive termination or expiry of this Agreement.
(b) We may provide reasonable assistance to you in retrieving the Customer Data during the 14 days following termination, provided that all fees and charges owing to us have been paid. Any additional post-termination services required outside the normal scope of such assistance (as determined reasonably by us) is subject to our agreement and may incur additional fees and charges.
(c) You acknowledge that suspension or termination of this Agreement may result in you being unable
to access or recover the Customer Data. We will under no circumstances be liable for any loss of Customer Data or any other data as a result of suspension or termination. If applicable, you must ensure that you arrange alternate access to the Customer Data with third party providers.


5. INDEMNITY

You agree to defend, indemnify, and hold harmless us, our affiliates and each of our employees, officers, directors, and representatives from and against any claim or liability (including legal fees on a full indemnity basis) directly or indirectly arising out of or relating to:


(a) the use of the services by you or any other third party having access to your account;
(b) breach of this agreement or violation of an applicable law by you;
(c) any claim in relation to the customer data, including without limitation alleged infringement or misappropriation of third-party rights (including intellectual property rights); or
(d) a dispute between you and any other third party



6. LIMITATION OF LIABILITY

(a) To the extent permitted by law, we will not be responsible for, including without limitation, any direct, indirect, incidental, or consequential loss or damage under any circumstances (including, without limitation, negligent acts or omissions) to you or your employees, directors, officers, agents or representatives in connection with or arising out of:

(i) the use or access of the services;
(ii) the inability to access the services, whether as a result of:

(a) termination or suspension of this agreement;
(b) discontinuation of any or all of the services;
(c) subject to the sla, unscheduled downtime on all or a portion of the services for any reason;

(iii) the cost of procurement of substitute services;
(iv) any investments, expenditures, or commitments by you in connection with this agreement or the your use of or access to the services; or

(v) any unauthorised access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of the customer data or any other data.

(b) in any case, our aggregate liability to you under this agreement will be limited to the amount actually paid to us under this agreement for the services that gave rise to the claim during the 6 months preceding the claim.


7. DISCLAIMER

The services are provided on an “as is” basis. to the extent allowed by law we, our affiliates and our respective employees, officers, directors, and representatives disclaim any and all warranties, conditions and guarantees, including without limitation:


(a) The completeness, quality, accuracy, truthfulness, timeliness, security or reliability of the services or the cloudscale.io data;
(b) that the services will be free from errors, bugs, viruses, trojan horses and other security flaws and defects, or that we will fix such flaws and defects upon becoming aware of them;
(c) that we will not discontinue any part of the services;
(d) subject to the sla, that the services will always be available and that there will be no interruptions or disruptions to services;
(e) that any customer data submitted by you will not be lost or deleted; or
(f) that the services will be of merchantable quality or fit for purpose.



8. COMMUNICATION

8.1 Communications to you

We may provide communications to you by:

(a) sending it to the e-mail address you provided in relation to your Account; or
(b) publishing the communication on our website (www.cloudscale.io).

8.2 Communications to us

All communication to us must be provided by e-mail to: support@cloudscale.io

8.3 Communications

All communications must be in written English, legible and delivered in accordance with this clause 8.

9. GENERAL

9.1 Entire agreement

This document constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this document and have no further effect.

9.2 No merger

The provisions of this document will not merge on completion of any transaction contemplated in this document and, to the extent any provision has not been fulfilled, will remain in force.

9.3 Publicity

(a) You must not issue any press release or other public announcements with respect to this Agreement or the Services without our written consent.
(b) We may identify you from time to time in any advertising or marketing materials or communications as a user of the Services.

9.4 Force Majeure

We are not liable for any delay or failure to perform under this Agreement where the delay or failure results from any Force Majeure.

9.5 Assignment

We may assign our rights under this Agreement by notice to you. You will not assign this Agreement without our written consent.

9.6 Severability

Part or all of any provision of this document that is illegal or unenforceable will be severed from this document and will not affect the continued operation of the remaining provisions of this document.

9.7 Waiver

Waiver of any power or right under this document:

(a) must be in writing signed by the party entitled to the benefit of that power or right; and
(b) is effective only to the extent set out in that written waiver.

9.8 Further assurances

Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this document and the transactions contemplated by it (including, but not limited to, the execution of documents).

9.9 Governing law and jurisdiction

This document will be governed by and construed in accordance with the laws in force in [the State of Victoria, Australia] and each party submits to the non-exclusive jurisdiction of the courts of that State.

10. DEFINITIONS

“Account” means a CloudScale.io account in connection with this Agreement that has been validly created by you to access the Services.

“Approved Products” has the meaning given under clause 1.5.

“Business Day” means a day between Monday to Friday and excluding Saturdays, Sundays and public holidays in Melbourne, Australia.

“Claim” means any claim, notice, demand, action, proceeding, litigation, investigation or judgment, whether based in contract, tort, structure, equity or otherwise.

“CloudScale.io” the CloudScale.io platform available at www.CloudScale.io.

“CloudScale.io” software (including machine images), data, text, audio, video, images or other content which we may make available to you in connection with the Services or on CloudScale.io to allow access to and use of the Services.

“Cloud Infrastructure Services” means compute capacity, data storage, data transmission, network and related infrastructure services provided through the internet by third party providers.

“Confidential Information” includes all:

(a) CloudScale.io data;
(b) non-public information relating to us or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; and
(c) any third-party information that we are obligated to keep confidential.


“Customer Data” means software (including machine images), data, text, audio, video, images or other content which you or any other person in connection with your Account:

(a) run on the Services;
(b) cause to interface with the Services; or
(c) upload to the Services under your Account or otherwise transfer, process, use or store in connection with your Account.


“Force Majeure” means any event or circumstance outside our reasonable control, including acts of God, labour disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

“Intellectual Property” means all intellectual and industrial property rights (whether or not registered or registrable) including, but not limited to:

(a) all technical information, know how, trade and service marks, business names, domain names, copyright, designs, patents, logos, drawings, inventions, discoveries, research developments, trade secrets, rights in circuit layouts, rights in data bases, supplier and customer listings and engineering, financial and other commercial data and information;
(b) any application or right to apply for registration of any of the rights in paragraph (a) and all renewals and extensions of those rights; and
(c) the right to have Confidential Information kept confidential.


“Liability” means any liability, loss, damage, outgoing, cost or expense, whether direct, indirect, incidental or consequential, of whatever description.

“Services” means CloudScale.io and any other services made available by us to you from time to time.

“Service Fee” means the fees payable by you to us in respect of the Services.

“SLA” means the service level agreement offered by us in relation to the Services published on our website (www.cloudscale.io) as updated from time to time.

“Third Party Products” means Cloud Infrastructure Services and/or any other third party applications, data, services, hardware or software operated by third parties and subject to third party terms and conditions which may be required to gain the benefits of the Services or which may be accessed, used or made available through CloudScale.io.


Changes to Terms and Conditions and Invalidity

These terms and conditions may be changed by us at any time. You will be deemed to accept the terms and conditions (as amended) when you next use the Website following any amendment.


CloudScale.io Service Level Agreement (SLA)

As CloudScale.io is in Beta phase we will try to ensure that the standard of the Website remains high and to maintain the continuity of it to the best of our ability, but in the beta phase we do not guarantee the availablity or uptime of the CloudScale.io service(s) or platform. The internet is not an inherently stable medium, and errors, omissions, interruptions of service and delays may occur at any time. We do not accept any liability arising from any such errors, omissions, interruptions or delays or any ongoing obligation or responsibility to operate the Website (or any particular part of it) or to provide the service offered on the Website. We may vary the specification of this site from time to time without notice.