Standard Terms & Conditions
Updated 22 November 2022
The software and/or services set out in the quote, invoice, purchase order or other similar documents (“Quote”) to which these standard terms and conditions are attached are subject to these Standard Terms and Conditions.
In this Agreement:
“Agreement” means this Agreement, which is comprised of these Standard Terms and Conditions and the relevant Quote.
“Customer Data” means any data provided by the Customer to CloudRent or input by the Customer into the Services.
“Customer Material” means the Customer Data and any Material provided by or to which access is given by the Customer to CloudRent for the purposes of this Agreement.
“Customer Support Guide” means the CloudRent customer support guide, as updated by CloudRent from time to time.
“Documentation” means any training material (final version) provided by CloudRent to the Customer in connection with the Software, whether in paper or electronic format.
“Fees” means the fees specified in the quote.
“Licence” means the licence or right to access the Software or SaaS as set forth in clause 3.
“Material” means any material including documents, equipment, reports, technical information, studies, plans, charts, drawings, software, schemas, calculations, tables, schedules and data stored by any means.
“Permitted Licences/Users” means the permitted device licences or users specified in the relevant quote.
“SaaS Infrastructure Provider” means the third-party supplier of the hosting infrastructure services nominated by CloudRent from time to time.
“Services” means all services as specified in the relevant quote.
“Software” means the software specified in the Quote, being the generally available release of each Software product as at the date of purchase, and any patches, bug fixes, modifications and subsequent versions provided to the Customer by CloudRent under this Agreement.
“Software as a Service” or “SaaS” means the provision of access to the functionality of the Software made available by CloudRent to the Customer via the CloudRent SaaS Platform separately granted to the Customer and as specified in the relevant Quote.
“CloudRent SaaS Platform” means the SaaS platform described in clause 3.2
“CloudRent Material” means any Material created in the course of performing the Services, or provided by or to which access is given by CloudRent to the Customer for the purposes of this Agreement, including the Software, but excludes the Customer Data.
“Term” means the term contemplated by clause 6.1.
“Use Restrictions” means the limitations on the customer’s rights to use the Software and/or access the SaaS, including the limits on Permitted Licences/Users or other metrics specified in the relevant Quote.
2. Licence and Provision of Services
Subject to the Customer paying the fees, CloudRent agrees to provide the License, grant the right to access the SaaS and /or provide the Services (as applicable) to the Customer as set out in the Quote and these Standard Terms and Conditions.
3. Software Licence and Software as a Service Terms
3.1 Licence Grant or Access to SaaS
(a) CloudRent grants the Customer a non-exclusive, non-transferable perpetual licence or right to access (as applicable) and use the Software or Software as a Service and Documentation during the Term, subject to the Use Restrictions and solely for the internal business purposes of the Customer.
(b) The licence or access right is personal to the Customer, and the Customer may not attempt to transfer the right to any third party, including a Related Body Corporate (as defined by section 9 of the Corporations Act 2001 (Cth)).
(c) The Customer must ensure that it’s Permitted Licenses/Users comply with the requirements of this Agreement (where applicable), not sell or rent the use of, or results of the use of the Software or SaaS to anyone outside its business, and not attempt to mortgage, charge or otherwise encumber the Software or SaaS, or use the Software or SaaS as either surety or collateral.
3.2 CloudRent SaaS Platform (if applicable)
SaaS will be made available via the CloudRent SaaS Platform, consisting of:
(a) the infrastructure required to host the Software in the number of environments and with the storage space specified in the relevant quote; and
(b) a dedicated database schema for each customer, for data separation and privacy, a comprehensive anti-virus regime, including real-time scanning and a platform distributed across three (3) geographically separated data centres in an active/active/active configuration to provide dual redundancy at both the machine and data centre level.
3.3 SaaS Infrastructure Provider (if applicable)
(a) CloudRent may use any SaaS Infrastructure Provider to host the SaaS and may use more than one SaaS Infrastructure provider to host the SaaS.
(b) The Customer must comply with the end user terms of the SaaS Infrastructure Provider as they are relevant to the Customer’s use of the SaaS, as updated from time to time during the Term; and the acceptable use policy of the SaaS Infrastructure Provider, as notified to the Customer by CloudRent from time to time during the Term.
3.4 Support and Maintenance
As part of the SaaS, CloudRent will provide support and maintenance in accordance with the Customer Support Guide.
3.5 Prohibited Conduct
The customer must not use the Software or SaaS:
(a) to copy, modify or reverse engineer the Software without the Supplier’s express written permission, regardless of whether permitted under the Copyright Act 1968 (Cth);
(b) to engage in fraud, fraudulent or illegal behaviour;
(c) in a way that infringes any third party’s intellectual property rights; or
(d) in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of CloudRent or CloudRent’s other customers.
4. Additional Implementation or consulting services
Unless specified otherwise in the Quote, any implementation and consulting services relating to the Software or SaaS in the Quote will be subject to CloudRent’s standard consulting terms and conditions which are available upon request, on a time and materials basis at CloudRent’s then-current standard rates, payable monthly in arrears. If the Customer has not engaged CloudRent to implement any Software or SaaS purchased under the relevant Quote, the parties intend to enter into a further agreement to contract for the provision of implementation services, for additional fees as agreed at the time. The customer acknowledges that the Software or SaaS may not operate according to the Specifications if not properly implemented and configured.
5. Fees and Invoicing
(a) The initial fees are payable within 30 days of the effective date of the Quote.
(b) Unless otherwise specified, any ongoing annual fees will be increased each year on the anniversary date by the percentage change in the consumer price index.
(c) Unless otherwise specified, payment terms are 14 days from the date of invoice and fees are exclusive of GST.
(d) If the Customer’s access or use of Software or SaaS exceeds the Use Restrictions specified in the Quote at any time, the Customer will be required to pay additional fees. In such circumstances, CloudRent will send an invoice to the Customer for the increase in fees and the Customer will be obliged to pay the invoice in accordance with this Agreement.
(e) Without limiting any other remedy CloudRent may have under the Agreement or at law, CloudRent may suspend the provision of all Services if the Customer fails to pay the fees in accordance with clause 5 and the unpaid fees are more than 30 days overdue, and CloudRent has issued a further payment reminder notice.
(f) The Customer must pay all taxes, duties, government charges and other taxes of a similar nature (including any related fines, penalties and interest) imposed or levied in Australia or overseas in connection with the Customer’s performance of this Agreement.
(g) Pricing in the Quote is the confidential information of CloudRent intended for the Customer’s internal use only. The customer must not communicate or share the quote's contents with any third party in any form which may assist any third party in deriving CloudRent’s pricing.
6. Term and Termination
(a) This Agreement commences on the effective date of the Quote and continues for the period set out in the Quotation unless terminated earlier in accordance with this clause 6.
(b) Support and maintenance services will be provided for twelve (12) months and automatically renewed annually for the agreed period for support and maintenance. CloudRent reserves the right to suspend support and maintenance service providers in the event of non-payment. The Customer’s obligation to pay the annual support and maintenance fees will continue unless the Customer gives six (6) months’ notice in writing that it does not wish to continue using the support and maintenance services.
6.2 Termination for breach
If a party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receiving notice from the other party requiring it to do so or a party ceases to carry on business or any winding up proceedings are commenced in relation to a party, then the other party may terminate this Agreement by notice to that party, in which case this Agreement will terminate immediately.
7. Intellectual property
7.1 CloudRent Material
The customer agrees that all Intellectual Property Rights:
(a) in the Software, Software as a Service, Services, Documentation and CloudRent Material; and
(b) otherwise created by CloudRent in the course of performing the Services, are retained by CloudRent, and other than the access and/or licence right granted under clause 3.1, nothing in this Agreement grants the Customer any right, title or interest in the Software, Software as a Service, Documentation or CloudRent Material, or any other Intellectual Property Rights of CloudRent.
CloudRent retains all Intellectual Property Rights in modifications to the Software, Services and SaaS, regardless of whether those modifications are made at the suggestion of the Customer, or if the Customer paid Fees for those modifications. If CloudRent implements a change to the Software, Services or SaaS suggested by the Customer, the Customer assigns all Intellectual Property Rights in that modification to CloudRent.
7.3 Customer Material
Customer Material and Customer Data remain the property of the Customer.
8. Confidential Information
Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any confidential information of the other party provided to or obtained by that party before or after entry into this Agreement.
9. Limitation of liability
(a) Subject to the remainder of clause 9, any liability of CloudRent for any loss or damage, however, caused, suffered by the Customer in connection with this Agreement is limited to:
(i) the Fees paid or payable by the Customer to CloudRent under this Agreement in the twelve (12) months before the initial claim; or (ii) if no Fees are specifically identified, $10,000.
(b) Each applicable limitation of liability set out in clause 9 is an aggregate limit for all claims, whenever made.
(c) CloudRent is not liable for any indirect or consequential loss, whether caused, suffered or incurred by the Customer in connection with this Agreement.
10. Force majeure
Each party will not be in breach of this Agreement as a result of, or liable for, any failure or delay in the performance of that party’s obligations under this Agreement to the extent that such failure or delay is caused by circumstances beyond the reasonable control of a party including, without limitation, a physical act of nature, epidemic or quarantine restriction, and disruption or unavailability of the internet.
(a) Any capitalised terms not defined above have the meaning given to them in the relevant quote.
(b) This Agreement operates to the exclusion of any other terms and conditions, including any specified in a purchase order or similar document submitted by the Customer in relation to the provision of the software and/or services as described in the relevant Quote.
(c) The laws of Queensland, Australia govern this Agreement and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts
(d) In the event of any inconsistency or conflict between the documents constituting the Agreement, the documents shall rank in the following order of priority (with the document (i) being the highest in priority, etc.): (i) the Quote; (ii) the Standard Terms and Conditions; and (iii) other documents attached or specifically incorporated into the Agreement.