END USER LICENCE AGREEMENT
IMPORTANT USER NOTICE – READ THIS CAREFULLY BEFORE INSTALLING OR USING CLOUDRENT SOFTWARE.BY SELECTING THE “I AGREE” BUTTON, DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS ON YOUR OWN BEHALF AND ON BEHALF OF YOUR ORGANISATION.IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “I DO NOT AGREE” BUTTON, AND DO NOT INSTALL OR USE THE SOFTWARE IN ANY WAY AND IMMEDIATELY DELETE OR DISPOSE OF THE SOFTWARE.
End User Licence Agreement
Parties: This End User Licence Agreement together with any completed Order Form (“EULA”) is a legal agreement between:
CloudRent Pty Ltd (ABN 55 619 933 167)Address: Suite 24, 45 Hayle Street, Burleigh Heads, QLD 4220 Australia Telephone: +61 7 5607 1296, and the person or entity who acquires the Software or the person or entity which has installed the Software (“Licensee”).
Acceptance by Licensee: Licensee acknowledges and agrees that it has acquired a license to use the Software on the condition that the installation and use of the Software is subject to the terms and conditions of this EULA. If the Software is installed or downloaded by an administrator of Licensee, the administrator is deemed to accept the terms and conditions of this EULA (for and on behalf of the Licensee and each User) by clicking the “I ACCEPT” button displayed on the relevant server. Acceptance of any modifications to the terms of this EULA made by CloudRent from time to time will be a pre-condition for installation and use of any Updates. For the avoidance of doubt no terms or conditions of Licensee, including any terms or conditions printed on or referred to in Licensee’s offer to purchase or order will be binding on CloudRent or have any legal effect unless expressly agreed to in writing by CloudRent.
Definitions: In this EULA, capitalised terms have the following meanings:
Affiliate(s) means an entity that directly or indirectly (including through intermediaries), is controlled by, or is under common control with, or controls, a party where the control is exercised by at least a 50% ownership interest through stock ownership or voting rights.
Commencement Date means the date that the Software is delivered to Licensee under clause 8, if delivered on CD/DVD ROM, the date such CD/DVD ROM is sent by CloudRent.
Documentation means any media, printed materials, electronic documentation and technical, operating and user manuals made available by CloudRent in relation to theSoftware, including such materials made available on the CloudRent Website.
Fees means the licence fees for the Software and, where applicable, the annual maintenance fees for Support and Maintenance payable by Licensee under the Licence and Maintenance Package as set forth in the then current price list of CloudRent.
Number of Users means the number of Users indicated in the Order Form.
Licence and Maintenance Package means the package offering by CloudRent for the applicable Fee consisting of a perpetual licence to install and use the Software in accordance with clause 4 with the option of obtaining Support and Maintenance on a yearly basis, as ordered by Licensee in the Order Form.
CloudRent Website means the website nominated from CloudRent from time to time, currently at www.cloudrent.me.
Software means the software as indicated in the Order Form, all Updates and the Documentation, but does not include any Third Party Software.
Support and Maintenance means the support and maintenance services provided by CloudRent to Licensee relating to installation and use of the Software in accordance with clauses 17 to 20.
Subscription Package means the package offering by CloudRent for the applicable Fee consisting of a licence to install and use the Software in accordance with clause 4 and the provision of Support and Maintenance on a subscription basis.
Third Party Software means software which is created or developed by a party other than CloudRent and includes open source software.
Updates means any patches and modifications, enhancements, improvements and revisions of the Software, including new releases of Software, made available by CloudRent at its discretion from time to time.
User means each person (including a person under the authority or control of an Affiliate of Licensee) who is permitted access to the Software by Licensee and uses the Software under the authority or control of Licensee.
End User Licence Agreement
4. Licence: Upon acceptance of this EULA in relation to the Software and payment of the applicable Fees by Licensee, CloudRent grants to:a Licensee under a Licence and Maintenance Package a perpetual, non-exclusive, non-transferable, non-sublicensable licence to install and use the Software subject to the terms and conditions of this EULA; ora Licensee under a Subscription Package a non-exclusive, non-transferable, non- sublicensable licence to install and use the Software subject to the terms and conditions of this EULA for the term of the subscription, from the Commencement Date.
5. Number of Users: The licence granted under clause 4 is limited to the Number of Users. The Number of Users may not be reduced but Licensee may authorise different Users to access and use the Software from time to time, provided that Licensee must ensure that the Software is not installed for use by more than the Number of Users at any one time and that any person who ceases to be a User no longer accesses or uses the Software. Licensee must, on request by CloudRent, report to CloudRent the number of Users every 6 months (from the Commencement Date) during the term by completing and submitting to CloudRent a completed User Report Form.
6. Copies: Licensee may only make a copy of the Software if it is solely for backup purposes or required for the purpose of updating or upgrading hardware, system maintenance, ensuring the continued availability of the Software to authorised Users or is otherwise expressly permitted by law. Each User may make a copy of the Software for use on laptops or home PCs provided that the Software is only accessed through the licensed server. Any copy of the Software must clearly show all titles, trade marks, copyright notices, legends, and other proprietary markings without modification. Licensee must not otherwise copy the Software to any storage device or other server or remove or relocate the server for which the Software is licensed under this EULA except as expressly permitted by this EULA or by law, unless with CloudRent’ prior written consent.
7. Third Party Software: The Software may incorporate or access Third Party Software and services. CloudRent will have no liability or responsibility for the operation or performance of the Third Party Software and will not be liable for any damages, costs, or expenses, direct or indirect, arising out of the performance or failure to perform of the Third Party Software.
8. Delivery and Risk: The Software will be made available to Licensee for download from the CloudRent Website or delivered on CD/DVD-ROM. Risk of loss or damage to the Software passes to the Licensee on delivery.
9. System Requirements: Licensee acknowledges and agrees that the Software may only be installed and used on PC computer equipment, including a server or individual computer, which meets or exceeds the minimum system requirements identified and notified by CloudRent to Licensee from time to time. Licensee acknowledges and agrees that it is solely responsible for obtaining, installing, operating and maintaining all hardware, other equipment and third party software required for use of the Software. All computer functionality, operating system, network services, hardware maintenance and data backup are the responsibility of the Licensee. CloudRent IS NOT RESPONSIBLE FOR DATA LOSS ARISING AS A RESULT OF USE OF THE SOFTWARE OR INTERACTION OF THE SOFTWARE WITH ANY THIRD PARTY SOFTWARE.
10. Evaluation Version: CloudRent may provide Licensee with an evaluation version of the Software solely for Licensee to evaluate the Software during a specified evaluation period, currently 30 days after 10 initial uses of the Software. Extended access to the evaluation version of the Software beyond the evaluation period will be enabled via a ‘licence key’ provided by CloudRent at the discretion of CloudRent. Any use of the Software after the expiry of the evaluation period (including, where applicable, any extensions) is not permitted unless the applicable Fees are paid by Licensee. The terms and conditions of this EULA apply in full during the evaluation period except that:no Fees are payable; the licence granted to Licensee with respect to the evaluation version of the Software is non-exclusive, non-transferable, non-sublicensable for the specified evaluation period only and limited to the purpose as stated in this clause 10; and unless otherwise agreed by CloudRent in writing, limited support and maintenance services will be provided for non-production implementation only during the evaluation period.
11. Protection and Security: The Licensee agrees to use reasonable endeavours to safeguard the Software and any licence key(s) to ensure that no unauthorised person has access to them and that there is no unauthorised copying or distribution of the Software or the licence key(s).
12. Updates: CloudRent may direct Users to the CloudRent Website to enable Users to download Updates. Licensee must install all Updates to the Software to a minimum level of 3 minor point releases from current Software release to retain access to Support and Maintenance unless agreed in writing by CloudRent. Updates are only available to Licensee which has elected for, and has paid all applicable fees to retain the Support and Maintenance option under the Licence and Maintenance Package or Licensee under the Subscription Package.
13. EULA applies to Updates: Upon installation of an Update, the licence granted under this EULA will apply to such Update (to the extent varied by any additional terms and conditions made available to Licensee by CloudRent and all rights in respect of the previous version of the Software will lapse and no further use of the previous version of the Software is permitted.
14. Monitoring: Licensee agrees that it will comply and procure each User to comply with the terms and conditions of this EULA. Licensee must ensure each User is uniquely authenticated and accesses the Software via Windows authentication or claims based authentication.
15. Restrictions on Use: Licensee agrees and must procure each User:not to use the Software or any part thereof to provide outsourcing or computer bureau services; not to modify, translate, adapt or distribute the Software or communicate the Software to the public; not to rent, lease, resell, sublicense or lend the Software not to reverse engineer, reverse assemble, disassemble, reverse compile, decompile or imitate the Software or otherwise attempt to access, copy, display or extract the source code of the Software (except to the extent expressly permitted by law, in which case you must first notify CloudRent in writing) or create derivative works based on the Software not to circumvent technological measures intended by CloudRent to control access to the Software not to remove any copyright or other proprietary protection legends or notices from the Software to protect the confidential and proprietary information contained therein from being disclosed to any unauthorised person not to combine the Software with other software (except to the extent expressly permitted by law or the Documentation);not to claim ownership of the Software either verbally or in writing; to acknowledge to third parties that ownership of the Software vests in CloudRent; and not to use or copy the Software except as expressly provided in this EULA.
16. Online Knowledge Base: CloudRent may at its discretion make available to Licensee general information in relation to the installation and use of the Software in the form of online knowledge base on the CloudRent Website or forums of social media networks selected by CloudRent from time to time
17. Support and Maintenance: Subject to Licensee having installed all available Updates in accordance with clause 12 and paying all applicable Fees, CloudRent will provide Support and Maintenance to Licensee relating to installation and use of the Software via a Support Ticket system available between 9.00 am to 5.00 pm EST excluding Saturdays, Sundays and any public holidays in New South Wales, Australia, under which Licensee may submit a Support Ticket on the CloudRent Website. CloudRent will respond to the Support Ticket by e-mail, web conference or telephone (as it considers appropriate). Support and Maintenance via the Support Ticket system are not available outside the nominated hours unless agreed in writing, which may be subject to payment of additional fees. For avoidance of doubt, CloudRent is under no obligation to provide Support and Maintenance to Licensee which has not elected for the Support and Maintenance option under the Licence and Maintenance Package.
18. Cooperation: Licensee agrees, on request, to provide promptly to CloudRent any information available to assist CloudRent in identifying a technical error (such as any error diagnostic messages) when providing support and maintenance services.
19. Exclusions: CloudRent’ Support and Maintenance do not include the rectification of errors, defects or problems caused or contributed to by:default or negligence of Licensee improper or unauthorised use of the Software any modifications or alterations of the Software other than as approved by CloudRent or by any person other than CloudRent causes external to the Software such as, but not limited to, power failure, electric power surges or a force majeure event any failure by Licensee to download and install Updates made available on the CloudRent Website any failure by Licensee to comply with the Documentation any failure by Licensee to comply with any reasonable guidelines or instructions provided by CloudRent any fault, defect, omission or error in any data, software or equipment not supplied by CloudRent any failure arising out of any network (including the internet) or communications; or use of the Software with any software or equipment not approved or recommended by CloudRent, or in a manner or for a purpose in breach of this EULA or not reasonably contemplated by this EULA.CloudRent reserves the right to charge Licensee additional fees (at its then current rates) for the rectification of any errors, defects or problems caused or contributed to by any of the reasons listed above.
20. Support Term: CloudRent’ obligations to provide Support and Maintenance to Licensee under this EULA is conditional upon Licensee paying all applicable Fees and will cease upon the earlier of termination of this EULA in accordance with its terms or:in relation to a Licensee under the Licence and Maintenance Package, upon expiry of one year from the Commencement Date; orin relation to a Licensee under a Subscription Package, upon expiry of the relevant subscription period, unless the Support and Maintenance is renewed under the Licence and Maintenance Package or the subscription is renewed under the Subscription Package and all applicable Fees are paid by Licensee.
21. Training: CloudRent does not provide training for the use of the Software unless requested by Licensee or otherwise provided by this EULA and subject to Licensee entering into an agreement with CloudRent for the provision of such training services.
Fees and PaymentFees:
22. All Fees paid by Licensee to CloudRent under this EULA are non-refundable. Licensee under the Subscription Package agrees and acknowledges that it is liable for payment of subscription fees for the minimum period as detailed on the Order Form.
23. Taxes: Any applicable licence or other fees payable by Licensee under this EULA are (unless otherwise expressly stated by CloudRent) exclusive of any applicable goods or services or value added taxes or other taxes of similar nature (“Taxes”). Upon CloudRent’ request, Licensee must pay or reimburse to CloudRent any amounts payable on account of Taxes levied upon or arising out of the supply of the Software or any services by CloudRent to Licensee.
24. Licensee Contents: As between CloudRent and Licensee, Licensee owns all content it uploads using the Software and all intellectual property rights subsisting in the content.CloudRent will not access, view or listen to the content, except as reasonably necessary to exercise its rights or comply with its obligations under this EULA.
25. Ownership: Licensee acknowledges and agrees that all intellectual property in and to the Software (including copyright in all drawings, designs, the Documentation and specifications relating to the Software, algorithms, scientific or technical data and models forming the part of the Software) and any other information or material (including confidential information) relating to the Software remains the property of CloudRent, and that the Licensee acquires no right, title or interest in or to that intellectual property by virtue of this EULA other than as expressly stated in this EULA. The rights and interests in all copies of or modifications to the Software remain with CloudRent.
26. Improvements: The parties acknowledge and agree that all intellectual property rights in relation to any feedback, ideas, suggestions, proposals, development, modification, adaptation or improvement or in relation to the Software made or acquired by Licensee during the term of the EULA (“Improvements”) will, to the extent permitted by law, vest in and are hereby assigned to CloudRent with effect from their creation. CloudRent grants to Licensee a licence to use any Improvements on the terms of this EULA. Where title to Improvements is not permitted by law to vest in CloudRent, Licensee grants to CloudRent a perpetual, irrevocable, transferable, royalty-free, worldwide licence (including the right to sublicense) to use the Improvements for any purpose.
27. No Challenge: To the extent such prohibition is permitted by law, Licensee must not take any action, and must not assist any person to take any action that may jeopardise, limit, challenge or interfere with CloudRent’ ownership of or rights in the Software.
28. Third Party Claims: If any person alleges, or if CloudRent believes, that the use of the Software may infringe the intellectual property rights of any person, CloudRent may, at its discretion, suspend Licensee’s licence to use the Software until CloudRent:has replaced, modified or re-worked the Software, in whole or in part (or direct Licensee to do so) so that such infringement is removed; or has procured the right for Licensee to continue use the Software in accordance with this EULA.
Privacy, Confidentiality and Third Party Website
30. Marketing: By accepting the terms and conditions of this EULA, Licensee consents to receiving marketing and promotional communications from CloudRent or its authorised re- sellers from time to time. Any such marketing and promotional communication pursuant to the consent granted under this EULA will provide the Licensee with an ‘unsubscribe’ facility. The consent under this clause is given by Licensee every time Licensee accepts the terms and conditions of EULA in relation to the Software.
31. Confidentiality: Licensee must treat all information concerning the Software, including the Documentation as confidential and proprietary information of CloudRent (other than information that is lawfully in the public domain or lawfully in the possession of Licensee at the time of disclosure). Licensee may not reproduce, use or disclose that information to any person without CloudRent’ prior written consent, other than to those of the Licensee’s employees who must have access to such information for the performance of their duties.
32. Third Party Website: The Software may include links to third party websites, including forums of social media networks. CloudRent is not responsible for and do not endorse any features, content, advertising, products or other materials on or available from any third party websites. Licensee acknowledges and agrees that it accesses and use such third party websites subject to the applicable terms of such websites at its own risk.
Product Warranty and Limitation of Liability
33. Prescribed Terms: Nothing in this EULA excludes, restricts or modifies the application of any legislation which by the law of any jurisdiction cannot be excluded, restricted or modified. In particular, where Licensee is a “consumer” under the Australian Consumer Law (“ACL”), CloudRent gives the guarantees as required by the ACL (“Consumer Guarantees”) with respect to the Software and any Support and Maintenance supplied by it.
34. Product Warranty: In addition to (where applicable) any Consumer Guarantees given in clause 33, CloudRent warrants that the Software will perform in accordance with the “specifications” detailed in the Documentation on the CloudRent Website, published by CloudRent in relation to the Software and will be free from defects in materials and workmanship under normal use for a period of 30 days from the date that the Software is delivered to Licensee (“Warranty Period”). This product warranty does not apply if any errors, defects or problems are caused or contributed to by the causes outlined in clause19. This product warranty is the sole remedy for any Licensee which is not a “consumer” under the ACL.
35. ACL Notice: The following notice applies only to a Licensee which is a “consumer” under the ACL:Our goods come with warranties that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
36. Claim Procedure: If during the Warranty Period, Licensee believes that the Software does not operate in accordance with the “specifications” detailed in the Documentation on the CloudRent Website:Licensee must, within the Warranty Period, notify CloudRent in writing via the CloudRent Website or using the contact details at the front of this EULA if the Software has been delivered in the form of CD/DVD ROM. Licensee must at its cost return such CD/DVD ROM to CloudRent; andCloudRent will replace the Software at no charge to Licensee.
37. Permitted Exclusions: Subject to the clauses 33 and 34 and any express warranties provided in this EULA, all representations, warranties, guarantees, terms and conditions which would otherwise be implied in or imposed on this EULA in connection with any goods or services supplied by CloudRent or otherwise relating to the performance of CloudRent’ obligations under this agreement, are excluded. CloudRent does not warrant that the Software will be error free or that its use will be uninterrupted, that it will operate in combination with other software or any particular equipment or system, that it will provide any function other than set out in the Documentation, or that it does not infringe the rights of any third party.
38. Limitation of Liability: Subject to clauses 33 and 37 and to the extent permitted by law:(a) CloudRent will not be liable to Licensee for any special, indirect or consequential loss or damage, any loss of profit or business opportunity, any business interruption or loss of business information (including loss of data) arising out of or relating to this EULA, including claims arising out of the use or not being able to use or any defect in the Software, or the Support and Maintenance; whether at common law, under contract, tort(including negligence), in equity, pursuant to statue or otherwise, even if CloudRent has been advised of the possibility of such loss;CloudRent’ liability for any claim arising from a breach of warranty under this EULA or any term, condition or guarantee implied or imposed by statute which by law cannot be excluded (including any Consumer Guarantees) is limited, at the option of CloudRent, to the repair or replacement of the goods, the re-supply of those services or the payment of the cost of re-supplying those services; andCloudRent’s total liability to Licensee under or in relation to this agreement however arising, including under contract, tort (including negligence), under statue or otherwise, arising out of any act, omission or event or connected series of acts, omissions or events will not exceed in aggregate the total amount of Fees paid in the preceding 12 months by Licensee under this EULA.
39. Licence Term: The licence granted in clause 4:under a Licence and Maintenance Package is perpetual; and under a Subscription Package continues for the term of the relevant subscription, unless terminated by CloudRent or Licensee in accordance with its terms.
40. Termination by Licensee: Licensee may terminate this EULA at any time by giving written notice to CloudRent and complying with the conditions of clause 42.
41. Termination by CloudRent: CloudRent may terminate this EULA immediately by giving written notice to Licensee if Licensee fails to pay any fees which are due and payable under this EULA within 30 days Licensee fails to comply with any term or condition of this EULA Licensee becomes bankrupt or insolvent; orCloudRent is required to do so by law (e.g. where the provision of the Software or Support and Maintenance to Licensee is or becomes unlawful).
42. Consequences of Termination: Upon termination or expiry of this EULA for any reason the Licensee must:immediately pay any outstanding amounts owed to CloudRent under this EULA and with respect to any Licensee under a Subscription Package, all remaining subscription fee instalments over the subscription period detailed on the Order Form remove the Software from each server and each computer or terminal on which it is installed cease all use or exploitation of any intellectual property or confidential information of CloudRent relating to the Software; and deliver up or destroy (at CloudRent’ option) all copies of the Software and Documentation that are in the possession of Licensee.
43. Surviving Clauses: Expiry or termination of this EULA for any reason does not affect the rights and obligations of either party arising prior to termination. Clauses 15, 24 to 27, 29, 31 to 38 and 42 survive the termination or expiry of this EULA for any reason.
(a) Entire Agreement: This EULA constitutes the entire agreement between CloudRent and the Licensee in relation to its subject matter and any prior representations, statement or undertaking howsoever made are expressly excluded.
(b) Amendments: CloudRent reserves the right to modify the terms of this EULA from time to time and any such modifications will take effect once published on the CloudRent Website or otherwise notified to Licensee. Subject thereto, no amendment or modification to this EULA is valid unless it is in writing and signed by an authorised representative of CloudRent.
(c) Dispute: A party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give written notice to the other party specifying the nature of the dispute and the parties’ representatives must endeavour in good faith to resolve the dispute expeditiously prior to commencing any formal proceedings.
(d) Severance: If any provision of this EULA is declared illegal or unenforceable, such provision is to be severed from this EULA and all other provisions of this EULA will remain in full force and effect.
(e) Waiver: Any delay or failure by CloudRent in enforcing its rights under this EULA is not to be construed as a waiver of those rights.
(f) Assignment: The Licensee may not assign, sub-contract or otherwise transfer any of the Licensee’s rights or obligations under this EULA unless CloudRent has given its prior written consent.
(g) Novation: CloudRent may by written notice to the Licensee transfer its rights and obligations under this EULA pursuant to a novation agreement in favour of a transferee who accepts all obligations of CloudRent under this EULA. The Licensee must do all things necessary to give effect to such novation, including the execution of relevant documents.
(h) Vienna Convention: The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to the Software or this EULA.
(i) Governing law and jurisdiction: This EULA is governed by the laws of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.
SCHEDULE 1 - SUPPORT
CloudRent will use its best efforts to cure, as described below, reported and reproducible errors in the Software. CloudRent utilises the following four (4) severity levels to categorise reported problems:
SEVERITY 1 - CRITICAL BUSINESS IMPACT
Error: The impact of the reported deficiency is such that the customer is unable to either use the Software or reasonably continue work using the Software.
Response time: Upon making contact with a member of staff at CloudRent, CloudRent will commence work on resolving the deficiency within one (1) hour of notification and will engage staff during business hours until an acceptable resolution is achieved.
SEVERITY 2 - SIGNIFICANT BUSINESS IMPACT
Error: Important features of the Software are not working properly and there are no acceptable, alternative solutions. While other areas of the Software are not impacted, the reported deficiency has created a significant, negative impact on the Customer's productivity or service level.
Response time: Upon making contact with a member of staff at CloudRent, CloudRent will commence work on resolving the deficiency within two (2) hours of notification and will engage staff during business hours until an acceptable resolution is achieved.
SEVERITY 3 - SOME BUSINESS IMPACT
Error: Important features of the Software are unavailable, but an alternative solution is available or non-essential features of the Software are unavailable with no alternative solution. The customer impact, regardless of product usage, is minimal loss of operational functionality or implementation resources.
Response time: Upon making contact with a member of staff at CloudRent, CloudRent will commence work on resolving the deficiency within one (1) business day of notification and will engage staff during business hours until an acceptable resolution is achieved.
SEVERITY 4 - MINIMAL BUSINESS IMPACT
Error: Customer submits a Software information request, software enhancement or documentation clarification which has no operational impact. The implementation or use of the Software by the Customer is continuing and there is no negative impact on productivity.
Response time: Upon making contact with a member of staff at CloudRent, CloudRent will provide an initial response regarding the request within one (1) business week.