Terms of Use

Please carefully read these Terms and Conditions before engaging with Cloud Collect. The Customer’s execution of these Terms and Conditions via this Clickwrap evidences the Customer’s consent to be governed by these Terms and Conditions and it is the Customer’s responsibility to ensure that any Customer employees, agents and Invited Users are made aware of these Terms and Conditions. If you are an Invited User, you must also accept these Terms and Conditions to use Cloud Collect’s Licensed Software. If the Customer or Invited User does not consent to be bound by these Terms and Conditions, the Customer or Invited User cannot use the Licensed Software.

Parties: You and/or the entity or firm you are authorised to represent will be referred to throughout these Terms and Conditions as the “Customer”.

Cloud Collect Pty Ltd ABN 74 630 831 775 will be referred to throughout these Terms and Conditions as “Cloud Collect”.

  1. Recitals and grant of licence
    • Cloud Collect owns and retains all right, title and ownership of the Licensed Software.
    • Cloud Collect grants to the Customer a non-transferrable, non-sublicensable licence to utilise the Licensed Software during the Term in connection with the operation of the Customer’s nominated entity subject to and in accordance with these Terms and Conditions.
    • When the customer pays the License Fees and accepts these Terms and Conditions, they become a Customer. A Customer is responsible for paying the License Fees for the use of the Licensed Software.
    • Cloud Collect permits the Invited User to utilise the Licensed Software as part of the License Fees as set out in clause 8 of these Terms and Conditions for as long as or until:
      • the Customer continues to pay the License Fees;
      • the termination of these Terms and Conditions; or
      • the Customer revokes the Invited User’s access to the Licensed Software.
  1. Term
    • The term is ongoing and will apply to these Terms and Conditions, unless terminated earlier in accordance with these Terms and Conditions.
  1. Licensed Software Services
    • Cloud Collect will provide all Licensed Software Services to the Customer that are made available online and additional Services as agreed between Cloud Collect and Customer in writing, including, but not limited to providing a Software to:
      • support Customer’s organisations to perform accounting, financial and business tasks through an online account;
      • create, manage and access the Invited Users’ information, payment details and invoices;
      • support the sale and processing of payment for the Customer’s products from the Invited User;
      • support the Customer’s management of the Invited Users’ failed and late payments; and
      • produce reports detailing a summary of the Customer’s debtors, income and payments.
    • These Terms and Conditions do not require the provision of every activity listed to be set out under clause 3, however, reasonably endeavours to define the scope.
    • Cloud Collect will have discretion to reasonably decide which services are appropriate to the Customer’s objectives under these Terms and Conditions and which services will be provided to the Customer.
    • In deciding which services will be provided to the Customer, Cloud Collect must take into account any requests made by the Customer to Cloud Collect.
    • Cloud Collect will not be liable for failure to provide all the Services. Cloud Collect will not be liable for any loss or damage (including indirect and consequential loss or damage) arising in connection to a failure to provide all the Services listed under this clause 3 of these Terms and Conditions.
    • Cloud Collect is not a professional services firm and does not provide professional advice. Any information provided by Cloud Collect or the Licensed Software is general in nature and cannot be considered as professional advice.
    • From time to time, Cloud Collect may offer a service at no charge (or discounted fees) (e.g. beta services) (“Beta Service”) and due to the nature of these Beta Services, the Customer uses Beta Services at the Customer’s own risk.
    • Cloud Collect may, at any time, release updates, modifications and enhancements to the Licensed Software and may also discontinue features. Where this occurs, Cloud Collect will endeavour to notify the Customer and Invited User where practical. If these changes require additional terms and conditions, Cloud Collect will notify the Customer and the Invited User.
    • Under these Terms and Conditions, Cloud Collect is not responsible for and expressly does not provide any of the following:
      • From delivery of any Licensed Software the Customer is solely responsible for back-ups of any Customer Materials, Customer Data or Invited User Data. Cloud Collect has no obligation to back-up or retain a copy of any Customer Materials, Customer Data or Invited User Data.
      • Cloud Collect will take reasonable steps to deliver the Services within a timely manner but does not undertake to meet any fixed deadline for delivery unless expressly stated otherwise.
      • Although Cloud Collect will use its best endeavours to deliver the Services, the Customer and the Invited User acknowledges and agrees that access to the Licensed Software or other applicable Services is reliant upon various factors outside the control of Cloud Collect including but not limited to:
        • the Customer’s or the Invited User’s internet service provider;
        • the Customer’s or the Invited User’s telecommunications provider; and/or
        • the Customer’s or the Invited User’s equipment used to access the Software.
      • Cloud Collect cannot guarantee that any Services provided by Cloud Collect will produce the Customer’s desired results as there are many variable factors out of the control of Cloud Collect that impact the Services.
  1. Suitability
    • Although Cloud Collect will use its best endeavours to facilitate the Services for the Customer’s desired purpose, Cloud Collect will not guarantee that the Services or Licensed Software are fit for purpose.
    • The Customer must conduct appropriate due diligence to ensure that the Services and Licensed Software are appropriate for the Customer’s desired goal.
    • The Customer bears complete responsibility in determining the suitability of the Services and Licensed Software for the Customer’s particular needs, requirements and the desired result to be obtained.
  1. Delays
    • Cloud Collect will use reasonable endeavours to deliver the Services, however, the Customer agrees that Cloud Collect will not be liable for any delays as the Customer acknowledges that delays are often outside the control of Cloud Collect.
  1. Support Services and excluded Support Services
    • Cloud Collect will provide the Customer with Support Services in relation to the Licensed Software, including:
      • Support articles available through Cloud Collect’s website.
      • Support provided via a support management system.
      • Telephone advice.
      • Email advice.
      • Ad hoc support.
    • Support Services to be provided by Cloud Collect under these Terms and Conditions do not include:
      • Correction of errors or defects caused by operation of the Licensed Software in a manner other than that currently specified by Cloud Collect.
      • Correction of errors resulting from data migration or transformation, whether performed by Cloud Collect or third parties, except where errors are directly attributable to actions of Cloud Collect.
      • Correction of errors or defects cause by modification, revision, variation, translation or alteration of the Licensed Software not authorised by Cloud Collect.
      • Correction of errors caused in whole or in part by the use of computer programs other than the Licensed Software unless the errors are due to scripts, software or code that have been introduced into the Customer’s information technology environment by Cloud Collect.
      • Correction of errors caused by the failure of the Customer to provide suitably qualified an adequately trained operating and programming staff for the operation of the Licensed Software.
      • Training of operating or programming staff.
      • Rectification of errors caused by incorrect used of the Licensed Software.
      • Rectification of errors caused by the client or third-party’s equipment fault.
      • The Customer or third-party equipment maintenance.
      • Diagnosis or rectification of faults not associated with the Licensed Software.
      • Installation of the Licensed Software.
      • aRectification of errors in the Customer’s, Invited User’s or third-party’s data.
      • Correction of errors arising directly or indirectly out of the Customer’s or the Invited User’s failure to comply with these Terms and Conditions or any other agreement with Cloud Collect.
      • Correction of errors arising directly or indirectly out of any third party’s failure to comply with any terms and conditions between that third-party and Cloud Collect.
      • Correction of errors or defects which are the subject of a warranty under another terms and conditions.
      • Providing support services ‘on-site’ or to any third-party, at any location.
    • Cloud Collect strive to maintain the available of the Services. On occasion, Cloud Collect need to perform maintenance on the Licensed Software, and this may require a period of downtime. Cloud Collect will try to minimise any such downtime. Where planned maintenance is being undertaken, Cloud Collect will attempt to notify the Customer and the Invited User in advance but cannot guarantee such notification.
    • Occasionally the Customer or the Invited User might not be able to access the Licensed Software. This may happen for any number of reasons, at any time.
    • Whatever the cause of any downtime, access issues or data loss, the Customer’s only recourse is to discontinue using the Licensed Software.
  1. Fees and expenses
    • The Customer’s use of the Licensed Software will generally require the Customer to pay Licence Fees to Cloud Collect.
    • The fees for the licence of the Licensed Software will be based on the selected subscription. Both however are subject to merchant fees and SMS fees, which is charged on usage and in addition to either subscription plan. ‘Freemium’ will be free of charge and ‘Premium’ is $29 + GST billed monthly.  (“Licence Fees”).
    • The Customer understands that subscription fees may be subject to change and reasonable notice will be provided from Cloud Collect.
    • The Customer understands and acknowledges that the fees outlined in this clause 2 are estimates and although Cloud Collect endeavours to provide accurate fee amounts, there may be additional factors encountered that alter the fees under these Terms and Conditions.
    • Any third-party providing services (e.g. electronic payment processing software) to Cloud Collect in relation to the Licensed Software are independent to Cloud Collect and the Customer may be charged additional fees on behalf of the third-party.
    • Additional administration fees may be charged subject to any applicable legislation.
    • The Customer agrees to pay all other external fees and taxes associated with the Customer’s use of the Licensed Software wherever levied.
    • The Customer is responsible for all costs in connection with the implementation of any strategies or Services suggested or provided by Cloud Collect and will be directly liable to any third parties for those costs.
  1. Billing and payments
    • If the User is subscribed to the ‘Premium’ subscription, they will be billed one month from the time of signing up and each month there after. Cloud Collect will bill the Customer for the Licence Fees via an electronic payment processing software (e.g. Stripe).
    • Payment of the License Fees will be automatically deducted from the Customer’s nominated bank account via an electronic payment processing software (e.g. Stripe).
    • The Customer acknowledges that Cloud Collect may request payment in advance of delivering the Services. The Customer agrees to comply with a request for advance payment.
    • All Licence Fees are inclusive of GST, and the applicable amount of GST is included to the Licence Fees in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    • To continue accessing the Licensed Software, Customer’s must make timely payments. To avoid delayed or missed payments, the Customer must ensure that Cloud Collect has accurate payment information for the Customer. Lack of payment or delayed payment of the License Fees may incur a suspension of access to the Licensed Software until payment is received.
  1. Customer obligations and rights
    • The Customer agrees and warrants that:
      • the Customer is entitled to use, and to authorise Cloud Collect to use, any material represented as Customer Materials in connection with the provision of Services and use by Cloud Collect will not violate any third-party rights;
      • use by Cloud Collect of the Customer Materials will not violate any Applicable Laws or Social Media Terms;
      • the Customer will provide Cloud Collect with accurate, complete and current information pertaining to the Customer’s business as necessary for the provision of the Services;
      • the Customer will not provide any Customer Material that is illegal, defamatory, abusive, harassing, pornographic, indecent, obscene, hateful, racist, or otherwise objectionable;
      • the Customer has sole responsibility for ensuring that Cloud Collect Materials complies with any specific laws or regulations applying to the Customer’s business;
      • the Customer is responsible to provide Cloud Collect with requested items and Customer Materials, necessary for the provision of the Services, promptly and as soon as practicable;
      • the Customer must use reasonable endeavours to facilitate prompt communication with Cloud Collect and must not behave in such a manner that will cause unreasonable delay;
      • the Customer is not subject to any restrictions or sanctions under Applicable Laws to utilise the Licensed Software either within the Jurisdiction of these terms and Conditions or any other jurisdiction;
      • the Customer must use their best endeavours to protect and maintain security of the Licensed Software in relation to usernames, passwords and other confidential information regarding the Licensed Software or in the provision of Services;
      • the Customer has the right to invite, alter and cease the Invited User’s access to the Licensed Software;
      • the Customer is responsible for resolving any disputes with the Invited User in relation to the Licensed Software;
      • the Customer is responsible for the Invited User’s use of the Licensed Software and will be responsible for any breach of these Terms and Conditions by the Invited User;
      • The Customer recognises that the Licensed Software is a tool and the Customer is fully responsible and liable for managing and taking carriage of any formal or informal complaints made by the Invited User in relation to the Invited User’s use of the Licensed Software or notifications or communications received by the Invited User through the Customer’s use of the Licensed Software.
      • the Customer is responsible for amending, changing or altering the Invited User’s details upon request from the Invited User;
      • the Customer has an obligation to provide true, accurate and complete information for the use of the Licensed Software including, but not limited to details of:
        • the Customer’s organisation, including the organisation’s owner/ director’s details and bank details; and
        • the Customer’s products, including the products’ names, unit prices, descriptions and relevant type;
      • The Customer is responsible for verifying the accuracy of any information that the Customer uses from the Licensed Software for the Customer’s legal, tax and compliance obligations;
      • if the Customer uses the Licensed Software to send notifications in relation to upcoming, failed or late payments to the Invited User, these notifications must not be regarded as being, in all circumstances, to menace, harass or cause offence; and
      • if the Customer uses the Licensed Software to inform the Invited User of failed and late repayments, these notifications must adhere to the Australian Competition and Consumer Commission guidelines as follows:
        • No more than three phone calls or letters can be made or sent a week (or 10 phone calls or letters a month); and
        • Phone contact may only be made between 7:30am and 9:00pm on weekdays, and 9:00 am and 9:00 pm on weekends.
      • A Customer must not:
        • use the Licensed Software in any way that might impair functionality or interfere with other people’s use;
        • access any system without permission;
        • introduce or upload anything to the Licensed Software that includes viruses or other malicious code;
        • Share anything that may be offensive, violates any law, or infringes on the rights of others;
        • Modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any party of the Licensed Software;
        • Resell, lease or provide the Licensed Software in any way not expressly permitted through these Terms and Conditions;
        • Repackage, resell, or sublicense any leads or data accessed through the Licensed Software;
        • Commit fraud or other illegal acts through the Licensed Software;
        • Act in a manner that is abusive or disrespectful to a Cloud Collect employee, partner, or other Cloud Collect Customer.
  1. Intellectual property and assignment
    • The Customer and Invited User acknowledge and agree that:
      • any and all right, title and interest, including IP Rights, in any Cloud Collect Material vest in Cloud Collect upon creation; and
      • Cloud Collect owns and retains all IP Rights in all Cloud Collect Materials and nothing in these Terms and Conditions grants the Customer any IP Rights in Cloud Collect Materials.
    • Cloud Collect acknowledge and agree that:
      • the Customer owns and retains all IP Rights in all Customer Materials; and
      • nothing in these Terms and Conditions grants Cloud Collect any IP Rights in any Customer Materials.
    • Cloud Collect grants the Customer a non-exclusive and revocable licence to use Cloud Collect Materials solely for the purpose of, and as necessary for, the Customer to benefit from the Services in accordance with these Terms and Conditions. Except as expressly permitted under these Terms and Conditions, the Customer and Invited User will not at any time create, copy, duplicate, distribute, modify or use, or otherwise take any commercial advantage of Cloud Collect Materials, nor assist any other party to do so, except as authorised under these Terms and Conditions.
    • The Customer grants Cloud Collect a non-exclusive and revocable licence to use the Customer’s Materials provided by the Customer to Cloud Collect during the Term and solely for the purpose of, and as necessary for, Cloud Collect performing the Services in accordance with these Terms and Conditions.
    • A party must not engage in any conduct which may challenge, damage or compromise the other party’s IP Rights in that other party’s materials (being Cloud Collect Materials or Customer Materials, as applicable).
    • The Customer is only permitted to utilise the Licensed Software in accordance with the Intended Purpose of these Terms and Conditions.
  1. Third-Party Materials
    • The Customer, Invited User and Cloud Collect acknowledge and agree that:
      • nothing in these Terms and Conditions is intended to affect, or affects, the ownership of IP Rights in Third-Party Materials, which will be subject to the terms and conditions applicable to them under agreements between the third-party and the Customer or Cloud Collect, as the case may be; and
      • unless otherwise expressly authorised by the owner of the IP Rights in the Third-Party Materials:
        • the authorship of any Third-Party Materials will be acknowledged on any use of those materials; and
        • the integrity of the Third-Party Materials will be preserved.
      • The Customer and Invited User agree to indemnify Cloud Collect and any Indemnified Party against any claim, loss or damage (indirect and consequential loss and damage included) arising in connection with the breach of third-party IP Rights or loss and damage of Third-Party Materials.
  1. Customer Data and Invited User Data
    • Under these Terms and Conditions, the Customer will provide and may have stored on Cloud Collect’s servers, Invited User Data. The Customer acknowledges and agrees that Invited User Data may be stored on servers owned by third parties pursuant to arrangements entered into by Cloud Collect.
    • Cloud Collect shall use all reasonable endeavours to ensure that any Invited User Data is held in a secure environment. The Customer acknowledge that no information which is available on the internet is completely secure and agrees that Cloud Collect will not be liable for any claim, loss or damage (including indirect or consequential loss or damage) to any extent should such security measures be overcome or breached and the Customer indemnifies Cloud Collect in respect of any such claims.
    • The Customer grants Cloud Collect and Cloud Collect reserves the right to use, copy, transmit, store, analyse, test, back up or manipulate the Customer Data and the Invited User Data submitted through the Licensed Software, to:
      • improve, develop and protect Cloud Collect’s Services;
      • create new Services; and
      • communicate with Customers about the payment of the License Fees. Depending on where the Invited Users are based, clauses 1, 12.2 and 12.3 of these Terms and Conditions may also apply to Invited User Data that the Customer enters into the Licensed Software.
    • In making use of Customer Data and Invited User Data, Cloud Collect will preserve the confidentiality of the Customer Data and Invited User Data respectively in accordance with its obligations and may amend or alter information to cause it to be unidentifiable.
  1. Security
    • Pursuant to these Terms and Conditions, Cloud Collect may introduce security features to make the Licensed Software more secure such as multi-stepped authentication. Depending on where the Customer or the Invited User is based, Cloud Collect may require the Customer or the Invited User to adopt some or all of these features. Where Cloud Collect makes the use of security features optional, the Customer and the Invited User are responsible for any consequences of not using those features. Cloud Collect strongly encourages Customers and Invited Users to use all optional security features.
    • Cloud Collect may notify the Customer or the Invited User if there appears to be unauthorised access to the Customer’s or the Invited User’s account, however, the Customer or the Invited User is responsible to report any unauthorised access detected by the Customer or the Invited User respectively.
    • Cloud Collect may restrict access to certain parts of the Services until the Customer or the Invited User verifies that access was by an authorised user.
    • Depending on the nature of the unauthorised access, and the location of the Invited Users, the Customer may be required to assess whether the unauthorised access must be reported to the Invited Users and/or a relevant authority. The Customer is obligated to make the required notifications under the Applicable Laws.
    • Customers and Invited Users agree to not use free-form fields in the Licensed Software to store personal data, (unless it is a field explicitly asking for personal data – like a first name or last name) credit card details, tax identifiers or bank account details.
  1. Privacy
    • If, as a result of these Terms and Conditions, a party is able to access any Personal Information about identifiable individuals, then that party:
      • must comply with the Privacy Act and all other applicable privacy laws and such other data protection laws as may be in force which regulate the collection, storage, use and disclosure of information; and
      • must comply with any privacy code or policy which has been adopted by the Customer (if provided by the Customer to Cloud Collect).
    • The parties agree that where Personal Information is disclosed or transferred from one party to the other, it is the responsibility of the Disclosing Party to ensure that proper notification of collection is made to the individual involved in accordance with the Privacy Act and the Australian Privacy Principles (as defined in the Privacy Act).
    • During the use of the Licensed Software by the Customer or the Invited User, Cloud Collect may create anonymised statistical data from the Customer’s or the Invited User’s usage of the Licensed Software, including through aggregation. Once anonymised, Cloud Collect may utilise the statistical data for Cloud Collect’s own purposes.
  1. Confidentiality
    • Each party (“Receiving Party”) must keep confidential all Confidential Information given to that party by the other party (“Disclosing Party”), and must use the same degree of care to protect the Disclosing Party’s Confidential Information from being accessed by unauthorised individuals as used to protect its own Confidential Information of a similar nature but not less than reasonable care.
    • The Receiving Party must not disclose any Confidential Information of the Disclosing Party to any third-party unless the Receiving Party has the express written consent of the Disclosing Party.
    • A party disclosing Confidential Information under clause 2 must use all reasonable endeavours to ensure that third parties receiving Confidential Information from the Disclosing Party do not disclose the information.
    • Confidential Information does not include information to the extent:
      • it is or becomes public without breach of these Terms and Conditions or otherwise through no fault of the Receiving Party;
      • the Receiving Party was lawfully and demonstrably in possession of the information prior to receiving it from the Disclosing Party; or
      • the Receiving Party can demonstrate the information was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information.
    • The Confidential Information of a party is the property of that party. Unless otherwise stated, the Receiving Party obtains no right, title, interest or licence in or to the Confidential Information of the Disclosing Party.
  1. Media release
    • The Customer or the Invited User shall not, without the express written approval of Cloud Collect, make any press release or other public announcements concerning the transactions contemplated by these Terms and Conditions or Cloud Collect’s involvement with the Services (or allow any other party to make a similar announcement), except as and to the extent that the Customer or a Invited User is obligated by law.
    • Where the Customer or the Invited User is obligated by law to make any public statement as described in clause 1, the Customer or the Invited User shall advise Cloud Collect prior to issuing any such public statement and the parties shall use their best efforts to cause a mutually agreeable statement to be issued.
    • The Customer or the Invited User may not in any way damage the reputation of Cloud Collect and the Customer and the Invited User acknowledge that damages may be claimed against Cloud Collect from the Customer or the Invited User for any breach of this clause 16.
    • The Customer agrees that Cloud Collect may acknowledge that Cloud Collect acted for the Customer and may publicise these details in various media outlets including, but not limited to, Cloud Collect’s website, print materials and Social Media Site.
  1. Incorporation of other terms
    • Cloud Collect reserves the right to request the Customer or the Invited User to sign further applicable terms and conditions which the Customer and the Invited User will not unreasonably refuse to do.
  1. Hosted Software [Guidance note: Please review and edit the below clauses in accordance with Cloud Collect’s included hosting services]
    • Cloud Collect is not responsible for providing any relevant Hosting services to the Customer.
    • Cloud Collect acknowledges that they must:

(a)       provide to the Customer, at the frequency agreed by both parties, an up to date copy of all of the Customer Data which is held or used in or by the Hosted Software in an electronic format reasonably required by the Customer;

(b)       subject to the Support Services set out in clause 6 of these Terms and Conditions, deliver to the Customer the Customer Data in the format and on media as reasonably requested within 10 business days after the effective date of termination or expiry of these Terms and Conditions;

(c)       after Cloud Collect has complied with the provisions under this clause 18.2, permanently delete any Customer Data remaining on the Hosting Infrastructure, and on request certify in writing to the Customer its compliance with this clause 18.2; and

(d)       on request by the Customer from time to time and subject to clause 6 of these Terms and Conditions Cloud Collect must:

(i)        provide the Customer with a copy of the Disaster Recovery Procedures;
(ii)       promptly make changes to the Disaster Recovery Procedures that are reasonably required by the Customer; and
(iii)      conduct annual testing of the Disaster Recover Procedures and provide the results of those tests to the Customer.
  1. Limitation of liability
    • To the maximum extent permitted by law:
      • Cloud Collect’s liability for any breach, act or omission of Cloud Collect or its personnel (whether based in contract, tort including negligence, common law, equity, statute or otherwise) is limited in aggregate to the total Licence Fees paid by the Customer to Cloud Collect for the 12 months immediately preceding the date on which the claim giving rise to the liability arose; and
      • Cloud Collect is not responsible for any liability arising from loss of Customer’s loss of capital, loss of anticipated wages, legal, tax or accounting compliance issues, damage to reputation, loss in connection with any other contract, or indirect, economic, special or consequential, punitive, exemplary loss or damage or expense, including loss or damage for:
        • introduction of harmful code and/or viruses;
        • loss of data including but not limited to Customer Data and Invited User Data;
        • breach of privacy;
        • breach of security;
        • breach of third-party IP Rights;
        • loss of profits, revenue, time and/or goodwill; and
        • loss of anticipated savings, opportunity and/or production of the Customer or the Invited User.
      • In particular, Cloud Collect shall have no responsibility or liability whatsoever as a consequence of any Customer Data or Invited User Data lost, destroyed or damaged by Cloud Collect.
      • A party’s liability under these Terms and Conditions, including any indemnity, will be reduced to the extent that the other party caused or contributed to the relevant loss or liability.
      • Cloud Collect does not warrant that the Licensed Software will be free of defects, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any time in respect of its operation.
      • Except as expressly provided by these Terms and Conditions, the Licensed Software is provided on an “as is” basis without any representation, warranty or condition, whether express or implied, statutory, out of a course of dealing or usage, trade or otherwise including any implied warranty or condition of merchantability quality or fitness for any particular purpose or use.
  1. Indemnity
    • The Customer and Invited User indemnifies Cloud Collect (and each of its officers, employees, consultants and agents (“Indemnified Parties”)) and must keep the Indemnified Parties indemnified against all loss, damage (including indirect and consequential loss and damage), claims (including claims for receiving harassing, menacing or offensive communications and spam), liability, expenses (including legal costs), third-party claims against Cloud Collect relating to the Customer’s and/or Invited User’s use of the Licensed Software, payment and/or outgoings incurred by or awarded against the Customer or the Invited User arising directly or indirectly from:

(a)       the Customer, Invited User or another third-party’s use of the Licensed Software;

(b)       non-performance of these Terms and Conditions;

(c)       any unlawful, wilful or negligent act or omission by the Customer and/or the Invited User, their employees, officers, agents, consultants or contractors in connection with the provision of the Services under these Terms and Conditions;

(d)       a breach or default by the Customer and/or the Invited User of its obligations (or any warranty) under these Terms and Conditions;

(e)       any infringement of the IP Rights of Cloud Collect or any infringement of the Intellectual Property Rights of Third-Party Materials caused or contributed to by the Customer or its agents, employees, contractors (other than Cloud Collect), consultants, officers or the Invited User;

(f)        damage to personal property; or

(g)       injuries suffered by the Customer, the Invited User and/or any person working within or in affiliation with the Customer’s organisation in relation to the events carried out under these Terms and Conditions.

  1. No guarantees or warranties
    • To the maximum extent permitted by law, the Services are provided without guarantee, warranty or representation as to the accuracy, reliability or completeness of the Services.
    • In particular, Cloud Collect does not guarantee, warrant or represent that the Services will achieve any specific results for the Customer’s business such as increased website traffic, sales or otherwise.
    • The Customer acknowledges that the reports produced by the Licensed Software are only as accurate as the information entered into the Licensed Software by the Customer and Cloud Collect does not guarantee, warrant or represent that the reports produced by the Licensed Software are accurate, reliable or a complete representation of the Customers debtors, income or payments received.
    • Subject to the applicable sections of Australian Consumer Law, Cloud Collect does not warrant that Licensed Software will be free of defects, uninterrupted, accurate, complete, current, stable, bug free, virus free, error free or available at all times.
  1. Use of Licensed Software
    • The Customer and the Invited User acknowledge and agree to use the Licensed Software to send notifications (via text message and phone call) to Invited Users in relation to (including but not limited to) upcoming, failed or late payments (“Notifications”).
    • The Customer acknowledges and agrees that if they send Notifications through the Licensed Software, they are doing so at their own risk and must comply with Applicable Laws.
    • The Customer and the Invited User acknowledge and agree that Cloud Collect are not liable for any use of Notifications by the Customer and that Notifications sent to the Invited User by the Customer are:
      • clearly not regarded to be to menace, harass or cause offence; and
      • clearly not considered to be spam.
  1. Competition law
    • Cloud Collect complies with Australian Consumer Law and provides all of the Consumer Guarantees contained in the Competition and Consumer Act 2010 (Cth) to the extent they are applicable. Where Cloud Collect breaches a warranty or guarantee which is implied by law into these Terms and Conditions and which cannot be lawfully excluded, then Cloud Collect relies on Section 64A of the Competition and Consumer Act 2010 (Cth). Accordingly, Cloud Collect’s liability for any such breach shall be limited at Cloud Collect’s option, as long as it is fair and reasonable to do so, to any one or more of the following:
      • Where there is a supply of goods, to the replacement or resupply of equivalent goods, or payment of the cost of replacing the goods or acquiring equivalent goods.
      • Where there is a supply of services, to resupplying the services or payment of the cost of having the services resupplied.
  1. Dispute resolution
    • If a dispute arises out of or relates to these Terms and Conditions, including any dispute as to breach or termination of these Terms and Conditions or as to any claim in tort, in equity or pursuant to any statute, neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause except where they seek urgent interlocutory relief.
    • Notice specifying the nature of the dispute
      • The party to these Terms and Conditions claiming that a dispute has arisen under or in relation to these Terms and Conditions must give written notice to the other party to these Terms and Conditions specifying the nature of the dispute.
      • On receipt of the notice referred to in this clause by that party, both parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, determination or similar techniques agreed by them.
    • Mediation
      • If the parties do not agree within 7 days of receipt of the notice, or such further period as agreed in writing by them, as to:
        • the dispute resolution technique and procedures to be adopted;
        • the timetable for all steps in those procedures; and
        • the selection and compensation of the independent person required for such technique;
      • then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the Jurisdiction.
      • The president of this professional association or the president’s nominee will select the mediator and determine the mediator’s remuneration.
    • Proceedings

If no resolution is achieved via the mediation referred to above, then either party may commence any court or arbitration proceedings relating to the dispute as they see fit.

  1. Termination
    • Upon failure by the Customer to pay a Licence Fee and/or upon breach of these Terms and Conditions, Cloud Collect may terminate these Terms and Conditions upon giving 3 days prior written notice to the Customer.
    • The Customer may terminate these Terms and Conditions on expiration of these Terms and Conditions or upon providing [30] days prior written notice to Cloud Collect.
    • A party may terminate these Terms and Conditions upon written notice to the other party if any party:
      • commits a breach of these Terms and Conditions and fails to remedy such breach within 15 days after receiving written notice from the non-defaulting party identifying the breach and requiring it to be remedied;
      • being a company, becomes insolvent or is made subject to an application for winding up or resolves to wind up (other than for the purposes of a solvent reconstruction), or has a receiver (or similar functionary) or an administrator appointed in respect of any of its assets, or ceases to carry on business or enters into a composition or arrangement with its creditors generally; or
      • being an individual, commits an act of bankruptcy, has its property seized under any distress or execution, has a trustee in bankruptcy appointed in respect of any of its assets, makes any arrangement or composition with its creditors or fails to contest within two weeks of service any petition for bankruptcy.
    • The Customer is not eligible for a refund where either party terminates these terms and conditions in accordance with these Terms and Conditions.
    • Upon Termination of these Terms and Conditions, the Customer is obliged to:
      • pay fees for any and all Services completed by Cloud Collect up until the Termination Date;
      • immediately return or (if requested by Cloud Collect) destroy Cloud Collect’s Confidential Information within its possession or control and certify to Cloud Collect that it has been destroyed;
      • ensure all Invited Users (and any other person who is permitted to access the Licensed Software under these Terms and Conditions) cease use of and (if requested by Cloud Collect) immediately destroy all copies of the Licensed Software.
    • Once these Terms and Conditions are terminated by the Customer or Cloud Collect, the Customer Data and Invited User’s Data submitted or created by the Customer is no longer available to the Customer. Cloud Collect retain the data for a period of time compliant with their obligations under the Applicable Laws, during which a Customer may reactivate their account by paying the required License Fees and once again access the Customer’s Data and the Invited User’s Data. Cloud Collect may retain Customer Data and Invited User’s Data in case the Customer requires it for record retention obligations, however, a Customer can contact Cloud Collect to have the Customer’s Data removed.
  1. Restraints
    • The Customer:
      • acknowledges the Customer will have access to Confidential Information of Cloud Collect and valuable relationships and business contacts of Cloud Collect; and
      • agrees for the duration of the Term and for a period of 6 months after the end of the Term (“Restraint Period”), not to (or assist any third-party to) approach, employ, engage, hire, solicit, divert, or entice away from Cloud Collect any person introduced to the Customer by Cloud Collect; and
      • agrees that they must not, in any capacity, in the territory during the Restraint Period knowingly promote, participate in, operate or engage in (whether on its own account or in partnership or by joint-venture or in any other capacity) a business or operation similar to, or otherwise competitive with Cloud Collect’s business.
    • The Customer further acknowledges that the provisions in this clause 26 are fair, reasonable and adequate to protect the legitimate commercial interests of Cloud Collect.
  1. Assignment
    • Neither party may assign or novate these Terms and Conditions or a right or obligation under these Terms and Conditions without the prior written consent of the other party.
  1. Variation
    • Cloud Collect reserves the right to make any variation, amendment or modification to these Terms and Conditions. Any relevant changes will not apply retrospectively and reasonable endeavours to notify the Customer and the Invited User regarding any changes will be made by Cloud Collect. Generally, Cloud Collect will endeavour to provide the Customer with 30 days’ notice of material changes before they become effective, unless Cloud Collect need to make immediate changes for reasons Cloud Collect does not have control over. If a change is not material, Cloud Collect will not notify the Customer. If the Customer considers a modified term unacceptable, the Customer may terminate these Terms and Conditions by giving the standard advance notice to Cloud Collect as required by clause 2 of these Terms and Conditions.
  1. Severability
    • Any provision of these Terms and Conditions which is prohibited or unenforceable will be interpreted as narrowly as necessary to allow it to be valid or enforceable, and if such narrow interpretation is not sufficient to make the clause enforceable or valid, then the provision will be severed from these Terms and Conditions without invalidating the remaining provisions.
  1. Notices
    • Any notice, or other communication to be given by either the Customer or Cloud Collect under these Terms and Conditions shall be deemed to have been duly given if it is in writing signed for and/or on behalf of the concerned party and delivered under acknowledgment due at the addresses indicated in these Terms and Conditions or as advised from time to time hereafter in writing by a party to the other.
    • All notice, other communication and written communication to be given to the Customer or Cloud Collect under these Terms and Conditions is inclusive of electronic communication where the date, time, sender and recipient can be established.
  1. Counterparts
    • These Terms and Conditions may be executed in any number of electronic counterparts and by the parties on separate counterparts. Each counterpart constitutes the Terms and Conditions of each party who has executed and delivered that counterpart.
  1. Entire agreement
    • These Terms and Conditions is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter.
  1. Jurisdiction
    • These Terms and Conditions are to be governed by and construed according to the laws in force in the state of Queensland, Australia, and the parties agree to the exclusive jurisdiction of the courts of Queensland.
  1. Force Majeure
    • If a Force Majeure Event occurs, the party affected (“Affected Party”) must give written notice to the other party of particulars of the Force Majeure Event and the extent to which the Affected Party is unable to carry out its obligations.
    • If the Affected Party provides the notice referred to above:
      • the obligations of the Affected Party (other than a payment obligation) will be suspended from the time the notice is received by the other party until the Affected Party is no longer prevented from or delayed in complying with those obligations by the Force Majeure Event;
      • the Affected Party must take reasonable steps to remove or mitigate the relevant Force Majeure Event;
      • if Cloud Collect is the Affected Party, the Customer will have the right to suspend all payments to Cloud Collect during that time in respect of the obligations that are affected by the Force Majeure Event (except payments that are due and outstanding); and
      • the term of these Terms and Conditions will be extended for that period of time.
  1. Excluded terms
    • The terms of the United Nations Convention on Contracts for the Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) do not apply to these terms.
  1. General
    • Nothing in these Terms and Conditions is intended to constitute a fiduciary relationship or an employment, agency, partnership or trust, and no party has authority to bind any other party.
    • The Customer must do such further acts and things and execute such further documents as may be necessary in the reasonable opinion of Cloud Collect to give effect or better effect to the provisions of these Terms and Conditions.
  1. Interpretation
    • Details to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulation issues under, the legislation;
    • Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, details to documents or Terms and Conditions also mean those documents or Terms and Conditions as changed, novated or replaced, and words denoting one gender include all genders;
    • Grammatical forms of defined words or phrases have corresponding meanings;
    • Parties must perform their obligations on the dates and times fixed to the capital city of the Jurisdiction;
    • Details to an amount of money refers to the amount in the lawful currency of the Commonwealth of Australia;
    • If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
    • Details to a party are intended to bind their executors, administrators and permitted transferees;
    • Obligations under these Terms and Conditions affecting more than one party bind them jointly and each of them severally; and
    • The terms and conditions herein replace any other terms and conditions of engagement that may have applied prior to the date of these Terms and Conditions.
  1. Definitions
    • Unless the context requires otherwise, capitalised terms not defined in this clause should be given their regular meaning.

Affected Party means the party that is affected by a Force Majeure Event that causes them to be unable to carry out their obligations under these Terms and Conditions.

Applicable Laws means all laws applicable to the Services and the Customer including, but not limited to the Privacy Act 1988 (Cth) and the Copyright Act 1968 (Cth).

Cloud Collect Materials means any Pre-Existing Materials, content and any material, including any documents, presentations, leaflets, brochures provided by Cloud Collect during, as a result of or in connection with the provision of the Services, as well as any derivative work created or developed in the performance of these Terms and Conditions by Cloud Collect either in isolation or jointly with the Customer, but excludes Customer Materials and Third-Party Materials.

Confidential Information includes the terms and conditions of these Terms and Conditions (but not its existence) and any information provided by a party to the other which is, or can be inferred to have been, provided in commercial confidence or of a confidential nature, whether or not expressly marked “Confidential”, including any information relating to the commercial activities, technologies, business processes, Customer, partner or supplier relationships, strategic information, know-how and any other information regarding the business of the disclosing party.

Customer means any customer of Cloud Collect or party who utlises the Licensed Software including any Customer employees, agents and Invited Users as applicable.

Customer Data means data owned or supplied by the Customer and stored on Cloud Collect’s systems through the provision of Services under these Terms and Conditions.

Customer Materials means any trademarks, images, content or other materials developed by the Customer prior to the commencement of the Term independently of these Terms and Conditions and includes any Customer Data.

Invited User means any customer or client of the Customer who is authorised by the Customer to access and use the Licensed Software.

Invited User Data means data owned or supplied by the Invited User and stored on Cloud Collect’s systems through the provision of Services under these Terms and Conditions.

Disaster Recovery Procedures means the actions necessary to restore a system back to its normal operating state.

Disclosing Party means the party disclosing Confidential Information.

Force Majeure Event means a natural and unavoidable catastrophe or pandemic that interrupts the expected course of events and restricts a party or both parties from fulfilling their obligations under these Terms and Conditions.

Hosting means the activity or business or providing storage space and access for Software or another Licensed Software.

Hosted Software means software that is installed, hosted and accessed entirely from a remote server or location.

Hosting Infrastructure means the factors implemented that determine security, reliability, website speed and other such functionalities in relation to hosting.

IP Rights means any intellectual and industrial property rights or entitlements throughout the world including those in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trade marks, service marks and designs, whether or not now existing and whether or not registered or registrable, as well as any right to apply for the registration, renewals and extensions of those rights, and any other Intellectual Property Rights as defined in Article 2 of the World Intellectual Property Organisation Convention of 1967.

Intended Purpose means the Customer’s reason and objective these Terms and Conditions was created for and entered into as implied by the Services provided by Cloud Collect to the Customer.

Indemnified Party means any party that is expressly indemnified under these Terms and Conditions.

Jurisdiction means the jurisdiction defined in clause 33 of these Terms and Conditions.

Licence Fees means the fees payable to Cloud Collect in consideration for the Services as set out in clause 3 of these Terms and Conditions or as otherwise agreed.

Licensed Software means Cloud Collect software being licenced in accordance with these Terms and Conditions.

Personal Information has the meaning prescribed to it in the Privacy Act.

Pre-Existing Materials means any materials which were developed or owned by a party before or independent of these Terms and Conditions, even if used or adapted in whole or in part during or as a result of the performance of the Services.

Privacy Act means the Privacy Act 1998 (Cth)

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Services means the Services Cloud Collect will provide now or in the future as outlined in clause 3 of these Terms and Conditions including but not limited to Cloud Collect’s online and mobile accounting and financial Software.

Social Media Site means any website, application, social network, platform, search service, messaging service or other third-party service which Cloud Collect may use from time to time, at Cloud Collect’s discretion, in connection with providing the Services. This may include but is not limited Facebook, Twitter and Instagram.

Social Media Terms means the terms and conditions of any Social Media Site.

Software means a set of instructions, data or programs used to operate computers and execute specific tasks.

Support Services means the support services to be provided to the Customer from Cloud Collect as set out in clause 6 of these Terms and Conditions excluding the services listed in clause 6.2 of these Terms and Conditions.

Term means the term set out in clause 2 of these Terms and Conditions.

Terms and Conditions means these Terms and Conditions and any schedule, annexure, appendix, exhibit or attachment to these Terms and Conditions.

Termination Date means the official date which these Terms and Conditions is validly terminated.

Third-Party Materials means any content, including text or images, created by a party other than Cloud Collect, the Customer or the Invited User.

 

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