1. This Agreement
  2. Services to the Customer
  3. Hosted Content
  4. Price and Terms of Payment
  5. Services and Support Services
  6. Intellectual Property Rights
  7. Customer Obligations
  8. Liability
  9. Security and Integrity
  10. Cloud Applications
  11. Confidential Information
  12. Term and Termination
  13. Suspension of Service
  14. Notices
  15. Miscellaneous Assignment
  16. Dictionary

Hello, and welcome to our Terms and Conditions. This is important and affects your legal rights, so please read them carefully. We hope you're sitting comfortably. Here we go...

1 This Agreement

1.1 Services are provided by theCloud Limited.

1.2 These Terms of Service form part of an agreement (this/the "Agreement") between theCloud Limited, a New Zealand limited liability company, ("theCloud") and the Customer.

1.3 This Agreement governs provision of theCloud's services ("Service") and is effective as of the moment Customer indicates agreement at theCloud website (Customer Service Portal), as of the moment the two parties sign a paper version, or as of the moment Customer uses any of the functions of the Customer Service Portal or element of the Service (whichever comes first).

2 Services to the Customer

2.1 theCloud will provide the Services to the Customer from the Commencement Date until expiry of the Term.

2.2 The Customer must immediately notify theCloud of any change in the Customer's contact details; payment details; services required; or any other details relevant to the Service.

2.3 theCloud will use all reasonable efforts to ensure the continuity and efficiency of the Services and to achieve the service levels in the Service Specifications.

2.4 The Customer may obtain a copy of the current Service Specifications on request to theCloud.

3 Hosted Content

3.1 The Customer will develop and install the Hosted Content and must either: purchase and install all necessary Authoring Software to allow the transfer of the Hosted Content to the Web Hosting Platform; or provide theCloud with a copy of the Hosted Content on disk or tape, for loading on to the Web Hosting Platform.

3.2 The Customer must provide and maintain all necessary terminal equipment, telecommunications services and software required to access or use the Services.

3.3 The Customer must follow all procedures specified by theCloud in relation to the Hosted Content.

3.4 The Customer must ensure that the Hosted Content functions within the parameters specified by theCloud.

3.5 The Customer must, unless it obtains theCloud consent, ensure that the Hosted Content relates solely to the Customer and its business or the businesses carried on by the Customer's parent company, subsidiaries, or subsidiaries of the parent company; or the Customer has the right to hold that information on behalf of a third party.

3.6 The Customer must ensure that the Hosted Content does not relate to the business of a third Party unless the Customer has the right to hold that information on behalf of a third party, or; the information is in the public domain; or the information enters into the public domain other than by breach of this Agreement.

3.7 The Customer must not, unless it obtains theCloud consent, sell, resell or provide to third parties any of the Services provided by theCloud under this Agreement. In the case of theCloud, in addition to section 3 above

3.8 The Customer will upload the Hosted Content through the browser-based upload tools or other mechanisms made available by theCloud.

3.9 theCloud acknowledges that the Hosted Content is Confidential Information, may contain Intellectual Property and may include commercially sensitive information and further agrees that it may not divulge the Hosted Content without the Customer's prior written consent, save as required by law.

4 Price and Terms of Payment

4.1 The Customer must pay theCloud the Customer Charges for the Service(s).

4.2 Overage: Customer will pay overage or service change fees in the event that it exceeds the default allocation of resources for the Service, during any period, as calculated by theCloud pursuant to its standard policies, and theCloud may charge overage fees daily (or at such times as it chooses).

4.3 Upgrade: Customer may Upgrade a Service through theCloud Customer Service Portal. Additional charges will go into effect upon Upgrade, and theCloud may generate a transaction for the cost of the difference in Service proportional to the number of days left in the payment period during which the Upgrade occurs, on a daily basis (or at such times as it chooses).

4.4 Downgrade: Unless restricted by a term contract, Customer may cancel or downgrade any Service at any time. Customer will provide notice of cancellation through the Customer Portal. The Downgrade of a service may not result in a credit for the balance of the payment period due to a Service cost being calculated on the cost of providing such service for the billing period from date of activation.

4.5 Compliance: The Customer must pay all government taxes, duties, fees and other charges in relation to this Agreement and the transactions contemplated by this Agreement.

4.6 The Customer will be charged penalties on any amounts not paid by the due date, the penalty fee is calculated at 12% of the overdue amount.

5 Services and Support Services

5.1 The Customer must not use the Services in a manner which, in the opinion of theCloud, may adversely affect the efficiency, security or use by third parties of the Web Hosting Platform.

5.2 The Customer must take all reasonable measures to prevent unauthorised access to the Web Hosting Platform.

5.3 theCloud may, if it considers reasonably necessary, direct the Customer to take corrective action in relation to its use of the Services. Support Services

5.4 All Services provided by theCloud are covered by 24x7 technical support and the Customer is entitled to contact after hours support Services on 0800 425383 at no additional cost.

5.5 Support activities not specifically related to the functionality of a Service will incur charges and these charges will be communicated to the Customer prior to incurring such charges. For example, activities such as data restoration from backups is charged on a time and materials basis and will be discussed with the Customer prior to initiating the restoration process.

6 Intellectual Property Rights

Customer Intellectual Property 6.1 Subject to clauses 6.2 and 6.3 of this Agreement, the Customer retains all present and future Intellectual Property rights in the Hosted Content and the End User Information.

6.2 The Customer grants to theCloud a licence during the Term:

  1. to store and reproduce the Hosted Content to fulfil its obligations to the Customer under this Agreement, as it considers necessary;
  2. unless the Customer otherwise directs, to use the Customer's name in promotion of theCloud; and
  3. to store, reproduce and adapt the End User Information for any theCloud reporting, marketing and promotional purposes provided that such use is not Customer, nor End User, specific.
theCloud Intellectual Property

6.3 theCloud retains all present and future Intellectual Property Rights subsisting in theCloud material, all material relating to theCloud Hosted Services Platform and software coding or other material used in the provision or operation of Services, or stored on the Platform.

7 Customer Obligations

7.1 The Customer warrants that is has the lawful authority to enter into and be bound by this Agreement

7.2 The Customer must ensure that the Hosted Content and any programming or software code does not contain any defects, viruses or other code that is intended to or is likely to:

  1. cause the Hosted Content to cease being operational;
  2. cause any damage to or interfere with the content or information stored on theCloud Platforms or the theCloud Platform itself;
  3. interrupt or interfere with the provision of a Service to any person; or
  4. result in unauthorised access to theCloud Platform.


7.3 The Customer must ensure that the Hosted Content:
  1. does not infringe any third Party intellectual property right or other rights;
  2. does not breach any law, standards, content requirements or applicable codes of conduct;
  3. does not contain material that is defamatory, pornographic, depicts acts of violence, sexual acts or which may perpetuate hatred against any person or group or have the likely effect of causing offence or harm;
  4. does not contain any instructions which if implemented might cause damage or injury to any person or property; and
  5. without limiting the generality of the above, will not expose theCloud to the risk of any claim, legal or administrative action.


7.4 The Customer must not use or permit the use of the Services or the Customer Web Site for any purpose that may:
  1. menace or harass any person or cause damage or injury to any person or property;
  2. be regarded by a reasonable person as offensive;
  3. involve the publication of any material that is defamatory or obscene; or
  4. constitute an infringement or commission of an offence against the laws of New Zealand.


7.5 If theCloud considers on reasonable grounds that the Customer has breached its obligations in clauses 7.1, 7.2, 7.3 or 7.4, theCloud may, (but is not obliged to) and without prejudice to any other right, claim or action it may have against the Customer, alter or remove the Hosted Content from the theCloud Platform(s).

7.6 If theCloud removes or alters any of the Hosted Content, the Customer must pay theCloud reasonable costs within 7 days of receipt of an invoice from theCloud for those costs.

7.7 If there is any claim by a third Party against theCloud arising directly or indirectly from a breach of the Customer's obligations under clauses 5, 7.2, 7.3, 7.4 or 9 the Customer must indemnify theCloud against all liability, loss, damage, cost and expense (including legal fees and expenses) which may arise directly or indirectly in respect of such claim or claims.

7.8 theCloud will not systematically review the Hosted Content to ensure that the Customer has complied with clauses 7.2, 7.3 and 7.4.

7.9 theCloud will refer all complaints in relation to the Hosted Content to the Customer. The Customer must respond to any complaint in relation to the Hosted Content within 7 days from the date on which the complaint is made and advise theCloud of the outcome. theCloud Warranties

7.10 theCloud warrants that it will:
  1. except in relation to the clearance objectives, meet or exceed the service levels specified in the Service Specifications; and
  2. in relation to the clearance objectives set out in the Service Specifications, meet or exceed the objectives for 80% of the faults reported by all Customers recorded over a calendar month.


7.11 theCloud maximum liability to the Customer for loss or damage arising under clause 7.10 is limited to the monthly Services Fee and the monthly Support Fee noted in the Schedule for each month the Service Specifications are not met.

7.12 Except as provided in clauses 7.11 and 8.2 theCloud gives no other warranties to the Customer, express or implied with respect to Web Site Hosting or any other Services provided to the Customer under this Agreement, and all such warranties are excluded.

8 Liability

8.1 Except as provided in clauses 7.11 and 8.2, theCloud will not be liable to the Customer (whether in contract, tort or otherwise) for any direct, indirect or consequential loss which may arise in relation to the Services provided to the Customer under this Agreement.

8.2 If a term is implied by law into this Agreement, and the law prohibits provisions in a contract excluding or modifying theCloud liability under that term, then it will be included in this Agreement. However, the liability of theCloud for any breach of such term will, if permitted by that law, be limited at the option of theCloud, to one or more of the following:

  1. in relation to goods:
    1. the replacement of the goods or the supply of equivalent goods;
    2. the repair of such goods;
    3. the payment cost of replacing the goods or acquiring equivalent goods; or
    4. the payment of the cost of having the goods repaired;
  2. in relation to Services:
    1. the supply of the Services again; or
    2. the payment of the cost of having the Services supplied again.


8.3 theCloud will not be liable to the Customer or any other person (whether in contract, tort or otherwise) for any loss or damage resulting from or arising as a consequence of the Customer's use of the Products and Services of Business Partners or third parties or any actions, conduct, material and information provided by the Business Partner or third parties to the Customer relating to the subject matter of this Agreement.

9 Security and Integrity

9.1 If theCloud considers that the Customer Web Site or the Customer's use of the Services is a threat to the security or proper functioning of the Web Hosting Platform, theCloud may immediately discontinue the Customer's access to the Services, remove the Hosted Content from the Web Hosting Platform and / or terminate this Agreement.

9.2 theCloud may, at the cost of the Customer, access or request copies of the Hosted Content or scripting work:

  1. to confirm that the Hosted Content or scripting work will not threaten the integrity of the Web Hosting Platform; or
  2. to check for compatibility and viruses.


9.3 theCloud reserves the right not to allow an executable file to become executable on the Web Hosting Platform if theCloud considers that the file may be a threat to the security or integrity of the Web Hosting Platform.

10 Cloud Applications

New Relic

10.1 New Relic, Inc. is the leading software-as-a-service provider of application performance management solutions. Its on-demand performance management solution is used by thousands of organizations around the world to monitor, troubleshoot, and tune their Ruby, PHP, Java and .NET web applications. By default every account hosted on theCloud is eligible for free "New Relic Standard". To activate New Relic monitoring, you must have services hosted on theCloud (any of our datacentres).

  1. When you register on theCloud you are automatically provided an account on New Relic (automatic opt-in) and you have the option to cancel this account (opt-out).
  2. Because the integration with New Relic is automatic, when registering on theCloud you are accepting both theCloud Terms and Conditions (this document) AND the New Relic Terms of Service located herewhich is incorporated by reference into these Terms and Conditions.
TryCatch
10.2 TryCatch collects all the errors reported by your applications, aggregating the relevant information into an easy to follow interface for developer review. You can mark errors as unresolved, resolved or ignored and you an drill down into the detail of each error and even see when it happened in the past.
  1. When activating TryCatch you will be presented with the specific Terms and Conditions relevant to the service.
COMS
10.3 COMS (Customer Operations and Management System ) is an online application best suited to the small and medium enterprise looking to operate more efficiently and maintain better customer relationships.
  1. When activating COMS you will be presented with the specific Terms and Conditions relevant to the service.

11 Confidential Information

11.1 Subject to clause 10.2, each Party agrees to strictly maintain the confidentiality of all Confidential Information. Neither Party may use, copy, or disclose any Confidential Information of the other Party except as contemplated by this Agreement.

11.2 A Party may disclose Confidential Information of the other Party if:

  1. the disclosure of that Confidential Information is permitted or required by law, or the disclosure of relevant information is required by the rules of any stock exchange in which either party is listed, provided written permission is given by the owner of the Confidential Information and such permission is not unreasonably withheld;
  2. the Party whose Confidential Information is to be disclosed consents to the disclosure; or
  3. disclosure to a third Party is necessary for the performance of a Party's obligations under this Agreement, and the third Party acknowledges the confidential nature of the Confidential Information and agrees to be bound by the provisions of this clause.

12 Term and Termination

12.1 This Agreement is effective as of the moment Customer indicates agreement at theCloud website (Customer Service Portal) and continues for the Term.

12.2 Either Party may terminate this Agreement without cause on 60 days notice to the other Party.

12.3 Early termination may incur penalty charges that must be paid on or before the Termination Date.

12.4 On expiry of the Term the Agreement will be automatically extended for a further term of one year unless either Party gives thirty days notice of its intention not to renew the Agreement.

12.5 A Party may terminate this Agreement by notice in writing to the other Party if the other Party breaches any of the terms of this Agreement and the breach is not capable of remedy or is not remedied within 30 days of receipt of a notice to do so.

12.6 theCloud may terminate this Agreement immediately if the Customer:

  1. becomes insolvent or has a receiver, manager, administrator or liquidator appointed or appears likely to do so; or
  2. does not pay any of the Customer Charges due under this Agreement within 21 days from the date that the Customer Charges fall due.


12.7 Upon the termination of this Agreement for any reason:
  1. each Party must promptly deliver to the other Party all Confidential Information of the other Party, or will otherwise destroy the same if directed by the other Party;
  2. the Customer must promptly deliver to theCloud all the theCloud Material provided to the Customer pursuant to this Agreement; and
  3. theCloud will remove the Customer Web Site and the Hosted Content from the Web Hosting Platform.

13 Suspension of Service

13.1 theCloud may suspend Services provided to the Customer if the Customer:

  1. fails to make payment on the due date of invoice; or
  2. fails to comply with any of the Customer obligations under this Agreement, in particular section 7.
13.2 a service fee of $25.00 (excluding GST, if applicable) will be charged at the time of re-activation to cover the costs of administration. 13.3 Any unpaid accounts may incur a late payment fee and collection costs.

14 Notices

14.1 Notices pursuant to this Agreement must be in writing and sent by prepaid registered post, facsimile or by email to the address of theCloud and the Customer as set out in the Registration Form or to the relevant address last notified.

14.2 A notice is taken to be received:

  1. in the case of a letter delivered by prepaid registered post, two days after the date of posting;
  2. in the case of a facsimile, on creation of an entry in a transmission log kept by the facsimile machine from which it was sent; and
  3. in the case of email, on the date of delivery.

15 Miscellaneous Assignment

15.1 The Customer may not assign its rights and obligations under this Agreement without the prior written consent of theCloud (which consent will not be unreasonably withheld).

15.2 theCloud may assign or novate its rights and obligations under this Agreement by notice to the Customer. Waiver

15.3 No right under this Agreement will be taken to be waived except by notice in writing signed by the Party entitled to waive such right.

15.4 A waiver by a Party will not prejudice its rights in respect of any subsequent breach of this Agreement by the other Party.

15.5 Any failure by a Party to enforce any part of this Agreement, or any forbearance, delay or indulgence granted by the Party, will not be construed as a waiver of the Party's rights under this Agreement. No reliance by the Customer

15.6 The Customer warrants that it has not relied on any representation made by theCloud which has not been expressly made in this Agreement or in any description or specifications contained in any other document supplied by theCloud. Publicity

15.7 Neither Party may make any press or other announcement or release relating to this Agreement or the Hosted Content where such announcement or release relate to or refers directly or indirectly to, theCloud Web Hosting Services or the subject matter of this Agreement, without the other Party's prior consent.

15.8 Except as provided in clause 6.2(b), neither Party may include the other Party in its vendor/Customer list without the other Party's prior written consent. Variation of the Agreement

15.9 In addition to clause 2.4, theCloud may vary these Terms and Conditions at any time by giving the Customer not less than 30 days written notice. If the Customer does not agree to the variation, it may terminate this Agreement by notice to theCloud before the date on which the variation is to take effect. Entire Agreement

15.10 These Terms and Conditions, the Registration Form and the Service Specifications constitute the entire Agreement between the parties with respect to the theCloud Platform Services and supersede all previous Agreements, proposals, representations or negotiations, whether written or oral. Survival

15.11 Clauses 3.9, 7, 8,11 and 15.12 survive termination of this Agreement. Applicable Law

15.12 This Agreement is governed by the laws in force in New Zealand, and the parties submit to the exclusive jurisdiction of courts of New Zealand. Any action taken against theCloud may only be effected in Hamilton, New Zealand.

16 Dictionary

16.1 In this Agreement these words have the following meaning: Agreement means these Terms and Conditions as further described in Section One and in 15.10. Authoring Software means the software used by the Customer to develop the Hosted Content and install the Hosted Content on the Web Hosting Platform. Business Partner means any Party recommended to the Customer by theCloud for the provision of Services relating to the development of the Hosted Content. Customer means the person or entity loging (or accepting the terms, online) the Registration Form and who agrees to be bound by the Terms of this Agreement. Customer Charges means the charges payable under clause 4 and the Service Specifications. Customer Service Portal means the theCloud's service registration and management website located at https://www.thecloud.net.nz/go/account. Customer Web Site means the web site located at the domain name specified in the Registration Form or as notified by the Customer from time to time that is hosted by theCloud through the provision of the Services, on these Terms and Conditions. Commencement Date means the date indicated in the Registration Form as the date on which theCloud will commence providing the Services following the installation of the Hosted Content on the Customer Web Site or the date that theCloud commences providing the Services. Confidential Information means all information exchanged between the parties, pursuant to this Agreement or in the course of the provision of theCloud Web Hosting Services, including the Hosted Content, but excluding information that:

  1. is in the public domain; or
  2. enters into the public domain other than by breach of this Agreement.
Customer Support Services means the telephone/fax/email support provided by theCloud or a third Party to Customers from time to time. Date of Acceptance means the moment the Customer indicates agreement of these Terms at theCloud website (Customer Service Portal). End-User Information means information relating to an end-user including information relating to access of the Customer Web Site by third parties. Hosted Content means the material and software code placed on the Customer Web Site and stored on the Web Hosting Platform including any data created by the operation of the Customer Web Site and all variations of the Hosted Content but excluding the End-User Information and log files. Intellectual Property means all statutory and other proprietary rights in respect of, without limitation, brands, business marks, layout designs, Confidential Information, copyright works, education materials, training materials, data, designs, drawings, get up, inventions, know-how (including know-how set out in manuals), logos, manuals, patents, plant varieties, procedures, programmes, prototypes, service marks, specifications, technical information, trademarks or trade names, trade secrets, core competencies, intellectual capital and all other rights as defined by Article 2 of the Convention of July 1967 establishing the World Intellectual Property Organisation (including applications for such rights) as may exist anywhere in the world. Party means a party to this Agreement being theCloud and/or the Customer. Registration Form means the online form to which these Terms and Conditions are annexed (located at www.thecloud.net.nz/go/register), or any other such online form presented within the Customer Service Portal used for the purpose of Registration for Service. Service Specifications means the theCloud Web Hosting Service Specifications determined by theCloud from time to time in relation to the Services. Service means a cloud computing, web hosting or other product or service supplied by theCloud to the Customer from time to time. Services means the cloud computing, web hosting other products and services supplied by theCloud to the Customer from time to time. Support Services means the Customer Support Services and services of third parties relating to the provision of support offered by theCloud to the Customer. theCloud means theCloud Limited (Company Number 1642586). theCloud Material means all material provided to the Customer by theCloud pursuant to this Agreement. theCloud Platform means the Hosted Services platform(s) and Services provided by theCloud Limited. Term means the period from the date on which theCloud notifies the Customer that it accepts the Registration Form until one year from the Commencement Date. Upgrade means an increase in Service Allocation at the Customer's request. Web means the World Wide Web. Web Hosting Platform means the integrated system of computer equipment, software and telecommunications services that comprise the infrastructure which allows theCloud to provide the Services.

16.2 In this Agreement unless the contrary intention appears:
  1. terms defined in the Registration Form have the same meanings when used in these Terms and Conditions;
  2. a reference to this Agreement includes the Registration Form and each of the Schedules and Annexure to these Terms and Conditions and all information contained or attached to the Schedules.


16.3 Headings are inserted for convenience and do not affect the interpretation of this Agreement.

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