Terms of Sale
What you should know
1.2 The Sale Terms apply to your purchase of any Services on the Site.
1.3 The Company shall either by itself or through its subcontractors sell and you shall purchase the Services offered for sale on the Site in compliance with the Sale Terms.
In these Sale Terms, except where the contrary intention is expressed, the following definitions are used:
Business Day: a) for receiving a Notice, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the Notice is received; and b) for all other purposes, any day that is not a Saturday or Sunday or a national public holiday.
Business Hours: from 9.00am to 5.00pm, local time, on a Business Day.
Card: a valid credit card or a valid debit card acceptable to the Company.
Company: CloudyBOSS, a division of the Giovanni Di Noto firm, the main party in these Sale Terms owning and responsible for the Site, and all of its directors, officers, employees, agents and affiliates.
Sale Terms Details: Schedule A to these Sale Terms.
Intellectual Property Rights: all intellectual property rights, including but not limited to, the following rights:
a) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks), domain names and any right to have confidential information kept confidential;
b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere, whether or not such rights are registered or capable of being registered.
Law: any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time, and includes the common law and rules of equity as applicable from time to time, any applicable industry codes of conduct and where none apply, international industry codes of conduct.
Loss: liabilities, expenses, losses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party) and consequential and indirect losses and damages including those arising out of any third party claim.
Material: any software, firmware, documented methodology or process, documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.
Notice: a notice, demand, consent, approval or communication issued under these Sale Terms.
Personal Information: information or an opinion (including information or an opinion forming part of a database), whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Personnel: a party s employees, officers, agents, and subcontractors.
Schedules: the schedules to these Sale Terms.
Services: the application hosting services, website hosting services, internet services, computer and computing services, communication and such other services known as provided by the Company from time to time.
Site: the website and sub-sites accessible at www.cloudyboss.com You: the other party in these Sale Terms, and including your employees, officers, agents and subcontractors if you are an organization.
In these Sale Terms, except where the contrary intention is expressed:
a) the singular includes the plural and vice versa, and a gender includes other genders;
b) another grammatical form of a defined word or expression has a corresponding meaning;
c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, these Sale Terms, and a reference to these Sale Terms includes any schedule or annexure;
d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
e) a reference to time is to the time in the place where the obligation is to be performed;
f) a reference to a party is to a party to these Sale Terms, and a reference to a party to a document includes the party s executors, administrators, successors and permitted assignees and substitutes;
g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
h) if you are a trustee, you enter these Sales Terms personally and in your capacity as trustee and warrants that you have the power to perform your obligations under these Sale Terms;
i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
j) the meaning of general words is not limited by specific examples or by including similar expressions;
k) any deed, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
l) any deed, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
m) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Sale Terms or any part of it;
n) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
o) headings are for ease of reference only and do not affect interpretation.
3. Terms of Sales
3.1 The Company is entitled to appoint subcontractors to provide the Services and to perform any act of the Company contemplated under these Sale Terms.
3.2 All Orders placed by You on the Site are accepted pursuant to the Sale Terms, which supersede any other terms relating to the sale of the Services appearing on the Site or elsewhere and shall override any other terms referred to by You or in any course of dealing.
3.3 An Order placed by You on the Site is an offer by You to purchase a particular Service.
3.4 The Company or its subcontractors reserve the right to accept or reject your Order for any reason, including, without limitation, an error in your order or in the material on the Site, or the unavailability of the Service.
3.5 The contract to purchase a particular Service only comes into existence upon acceptance by the Company or its subcontractors of your Order.
3.6 Services are subject to availability. In the event of shortage, the Company may allocate sales and provision of the Services in its sole discretion.
3.7 The Company or its subcontractors will only accept Orders for the provision of the Services if You are over the age of 18 years.
3.8 The Company or its subcontractors reserve the right to limit the quantity of Services purchased by You.
3.9 The price of a Service shall be as stipulated on the Order at the date of placement of your Order.
3.10 The Company or its subcontractors must receive full payment of the price of the Services ordered, and any other Charges (including delivery or freight charges) that may apply to your Order, before they are delivered or supplied to you.
3.11 You shall pay for the Services by using one of the payment methods available on the Site.
3.12 You must have a Card or sufficient funds in a bank account to cover an electronic debit of the fees to obtain access to the Software.
3.13 The payment information You provide must be accurate, current and complete, and You agree to notify us promptly of any change in the payment information.
3.14 When You subscribe and provide payment information, your Card or bank account will be debited, and will be automatically re-debited at the beginning of each applicable subscription term at the then-current subscription rate to maintain access to the Software.
3.15 Cancellation and renewal terms may be supplemented by program terms provided to you in writing or on the Site for the Software you have selected.
3.16 You must pay all legitimate charges incurred. No credit terms are given. Upon registration of a Card or direct debit bank authority, You automatically give the Company authorisation to debit their Card or bank account for all legitimate charges You incur.
3.17 You are responsible for the installation and use of all telecommunication equipment, facilities and charges and the payment thereof needed to access the Services of the Company.
3.18 Where the Services are to be delivered by instalments, each instalment shall be deemed to be the subject of a separate agreement and no default or failure by the Company or its subcontractors in respect of any one or more instalments shall vitiate the Sale Terms in respect of the Services previously delivered or undelivered Services.
3.19 In the event that the Company or its subcontractors give notice to You that it is unable to deliver any instalment of the Services, you shall be deemed to have accepted those instalments already delivered but the Company or its subcontractors may reimburse the price of the undelivered Services which have been paid for by you.
3.20 If You fail to take delivery of, or activate the Services or any part of them when they are made available to You, or fail to provide accurate instructions, documents, licenses, consents or authorizations required to enable the Services to be delivered, risk in the Services shall pass to You, delivery shall be deemed to have taken place, and You shall pay to the Company or its subcontractors all costs and expenses arising from your failure.
3.21 The Services are not authorized for use as critical components in life support systems or situations where failure to perform can reasonably be expected to cause significant injury to users or others.
3.22 The Company may update, or discontinue any Service and/or revise prices for any Service listed as available on the Site at any time.
3.23 You agree that changes may occur between any Service made available to You and the Services described in marketing materials.
3.24 You agree and warrant that the purpose of purchasing the Services is for your own internal use only, and not for resale.
3.25 The Company or its subcontractors shall be entitled to refuse to accept Orders placed by You if You breach or the Company or its subcontractors, on reasonable grounds, suspects that You will breach clause 3.20.
3.26 You agree to comply with all applicable export laws and regulations. Specifically, but without limitation, you agree not to re-export or ship, directly or indirectly, any Services or technical data in any form without first obtaining the Company s prior written consent and the appropriate export or re-export licenses from the relevant Government(s).
4. Intellectual Property Rights
4.1 Title to the Services which are software Services shall remain with the Company, sole licensor.
4.2 These Sale Terms do not grant You or any other party any license under any patents or other Intellectual Property Rights owned or controlled by or licensed to the Company.
4.3 You agree that:
a) The Company owns all rights, title and interest in the Company name(s), logotypes and trademarks, including but not limited to all documents, text, images, logos, concepts, website content and materials, and software developed or owned by the Company, unless otherwise indicated;
b) You will acquire no interest in any such trademarks or tradename(s) by virtue of these Sale Terms, its activities under it, or any relationship with the Company.
c) You will not adopt or use such trademarks or trade names, or any confusing word(s), symbol(s), as part of your trading name(s), or allow such marks or names to be used by others including your or their Personnel.
5. Protection of Personal Information
5.1 You hereby give permission to the Company to use personal information about You to any credit reporting agency for the purpose of the Company to assess your credit worthiness or for the purpose of the enforcement of payments which are overdue.
5.2 You hereby give permission to the Company to use and disclose personal information about You for the purpose of making the Third Party Software and Services You choose available to You.
5.3 The Company agrees not to sell, lend, disclose or otherwise release personal information to any other source for commercial or other gain.
6.1 In no event and under no circumstances, including any infringement claims, shall the Company or its subcontractors be liable to You or any other party or entity whosoever for any re-procurement costs, lost revenue, lost business, lost opportunity, lost interest, lost goodwill, lost or corruption or theft of data, lost profits, any other pecuniary loss, injury, death, delay or for any other direct, indirect, special, punitive or exemplary, incidental or consequential damages, resulting from performance or failure to perform under an agreement pursuant to the Sale Terms, or from the furnishing, performance or use of any Services sold or provided pursuant to the Sale Terms, or due to late delivery or non-delivery of the Services, whether in an action in contract, or tort, or otherwise, or due to a breach of contract, breach of warranty, negligence, or otherwise, even if the Company has been informed of such potential loss or damage.
6.2 The Company or its subcontractors shall not be liable for any delay or failure in its performance caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labour difficulties, equipment failures, or any other causes beyond its reasonable control.
7. General Provisions
7.1 All copyright and other Intellectual Property Rights contained in these Sale Terms remain the property of the Company.
7.2 A term or part of a term of these Sale Terms that is illegal or unenforceable may be severed from these Sale Terms and the remaining terms or parts of the terms of these Sale Terms continue in force.
7.3 An attempt by you to enter an Order which is subject to additional or altered terms and conditions shall be null and void.
7.4 These Sale Terms are governed by the Law of the jurisdiction specified in Schedule A Item 1 and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of that jurisdiction.
8. Acknowledgement and acceptance
8.1 Unless You notify the Company to the contrary by telephone, facsimile transmission or telex within seven (7) days of delivery and such notification is confirmed in writing within seven (7) days of its receipt by the Company, the Services shall be deemed to have been accepted by You as being in accordance with the Sale Terms.
8.2 The following clauses survive the termination of these Sale Terms:
a) Clause 4 (Intellectual Property);
a) Clause 5 (Protection of Personal Information);
b) Clause 6 (Indemnity).
Schedule A – Details
A.1 Court jurisdiction: Australia / New South Wales / Sydney