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...
1.1 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).
2.1 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.
3.1 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.
4.1 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.
5.1 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.
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:
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:
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:
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:
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).
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:
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:
13.1 theCloud may suspend Services provided to the Customer if the Customer:
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:
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.
16.1 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:
Thank you for reading our Terms. We hope you enjoy theCloud