Terms of Service
CLOUDDUKAN.com is a cloud-based web hosting/Services development website developed and owned by ibox7 PTY LTD. Australia.
This brief outline is to aid your understanding of CLOUDDUKAN.COM’s Terms of Service. The complete Terms of Service you will be bound to are below.
- CLOUDDUKAN does not allow unsolicited email (commonly known as SPAM). Furthermore, we require CAN-SPAM standards compliance https://www.acma.gov.au/avoid-sending-spam - for all email lists.
- CLOUDDUKAN reserves the right to limit incoming or outgoing email at any time. In the event you reach a limitation, we may, at our sole discretion, adjust your limit at your request.
- CLOUDDUKAN utilizes shared hosting technology to host your site. Due to the nature of shared hosting and the ability for you, as an individual user of a shared environment, to adversely affect other users, we reserve the right, at any time, to take action to prevent you from harming the servers, networks, or other users. Action may include suspension, site modification, blocking of access, rerouting of domains or Ips, and other actions.
- CLOUDDUKAN's "Unlimited" Policy is designed for the typical needs of a personal, micro, or small business. For example, it is not intended for computationally intensive software, large file repositories, as a backup system, as a free file download system, as a data warehouse, as a video archiving site, or other uses suitable for a dedicated server.
- CLOUDDUKAN reserves the right to terminate your account at any time without a refund. Reasons for termination include (but are not limited to):
- Abuse of the machines - either intentional or due to improper coding
- Committing or Promoting any type of illegal activity including fraud, mailbombing, denial of service attacks, storing and/or housing and/or linking to illegal content, including but not limited to, "warez", "hacking"/"cracking"/"key generators".
- The Services to traffic in illegal drugs and/or obscene materials.
- The Services to misappropriate or infringe the patents, copyrights, trademarks or other intellectual property rights of any third party.
- Additionally, CLOUDDUKAN reserves the right to terminate your account if at any time your site has pornography and/or nudity of any kind, including but not limited to, adult pornography, Anime, child pornography, "adult content" and/or the written word of a sexual nature.
- Use of ad-servers, attempts to circumvent quota system owned by 'nobody', certain podcasting or video sites, use of torrent software, proxies, excessive resource usage or 'core dumping'. Attempts to circumvent any of our security policies, procedures, or systems.
This User Agreement ("Agreement") is an agreement between Hosting Service CLOUDDUKAN, a product of ibox7 PTY LTD ("Company") or (“the Company”) and the party set forth in the related order form ("Customer" or "You") incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services ordered by Customer on the Order Form (collectively, the "Services").
PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS USER AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY'S USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
ACCEPTABLE USE POLICY
- Acceptable Use Policy. Under this Agreement, Customer shall comply with Company's then current Acceptable Use Policy ("AUP"), as amended, modified or updated from time to time by Company, which currently can be viewed under the Legal Details section of this web site, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. Company does not intend to systematically monitor the content that is submitted to, stored on or distributed or disseminated by Customer via the Service (the "Customer Content"). Customer Content includes content of Customer's customers and/or users of Customer's website. Accordingly, under this Agreement, You will be responsible for Your customers content and activities on Your website. Notwithstanding anything to the contrary contained in this Agreement, Company may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the AUP. In the event Company takes corrective action due to a violation of the AUP, Company shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Company shall have no liability to Customer or any of Customer's customers due to any corrective action that Company may take (including, without limitation, disconnection of Services).
Customer's Representations and Warranties.
- Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided through the Customer Web site.
- Customer will cooperate fully with Company in connection with Company's performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer's performance of its obligations under this Agreement will extend the time for Company's performance of its obligations that depend on Customer's performance on a day for day basis. Customer will notify Company of any change in Customer's mailing address, telephone, electronic mail or other contact information.
- Customer assumes full responsibility for providing end users with any required disclosure or explanation of the various features of the Customer Web site and any goods or services described therein, as well as any rules, terms or conditions of use.
- Because the Services permit Customer to electronically transmit or upload content directly to the Customer Web site, Customer shall be fully responsible for uploading all content to the Customer Web site and supplementing, modifying and updating the Customer Web site, including all back-ups. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer Web site are compatible with the hardware and software used by Company to provide the Services, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Services will be available on Company's Web site. Customer shall periodically access Company's Web site to determine if Company has made any changes thereto. Company shall not be responsible for any damages to the Customer Content, the Customer Web site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer Web site to be compatible with the hardware and software used by Company to provide the Services.
- Customer is solely responsible for making back-up copies of the Customer Web site and Customer Content.
- Customer hereby represents and warrants to the Company, and agrees that during the Initial Term and any Term thereafter Customer will ensure that:
- Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person or Entity;
- Customer's use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any "moral right" or similar right however denominated;
- Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer Web site and will use the Customer Web site only for lawful purposes; and
- Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
- Customer shall be solely responsible for the development, operation and maintenance of Customer's web site, online store and electronic commerce activities, for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer's products, including, without limitation
- the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products,
- ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and
- ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store.
- Customer grants Company the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.
- In addition to transactions entered into by Customer on Your behalf, Customer also agrees to be bound by the terms of this Agreement for transactions entered into on Customer's behalf by anyone acting as Customer's agent, and transactions entered into by anyone who uses Customer's account, whether or not the transactions were on Customer's behalf.
- License to Company.Customer hereby grants to the Company a non-exclusive, royalty-free, worldwide right and license during the Initial Term and any Term thereafter to do the following to the extent necessary in the performance of Services under the Order:
- digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and
- make archival or back-up copies of the Customer Content and the Customer Web site.
- Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.
- Company, in its sole discretion, reserves the right (i) to deny, cancel, suspend, transfer or alter, modify, correct, amend, change, program, or take any other corrective action to protect the integrity and stability of the Services (including altering, modifying, correcting, amending, changing, programming, or taking any other corrective action regarding any malicious code, software or related abusive activity, Customer Content and/or web site(s)), and/or (ii) to comply with any applicable laws, government rules, or requirements, requests of law enforcement, or to avoid any liability, civil or criminal. Customer further agrees that Company shall not be liable to Customer for any loss or damages that may result from such conduct.
- Billing and Payment.
- Customer will pay to Company the service fees for the Services in the manner set forth in the Order Form.
- Company may increase the Service Fees (i) in the manner permitted in the service description and (ii) at any time on or after expiration of the Initial Term by providing ten (10) days prior written notice thereof to Customer.
- The Service Fees do not include any applicable sales, use, revenue, excise, or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company's net income). All such taxes will be added to Company's invoices for the fees as separate charges to be paid by Customer. All fees are fully earned when due and non-refundable when paid.
- If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company's reasonable attorneys' fees.
- If any check is returned for insufficient funds Company may impose a minimum processing charge of A$25.00.
- In the event that any amount due to Company remains unpaid seven (7) days after such payment is due, Company, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
- There may be a minimum A$50.00 charge to reinstate accounts that have been suspended or terminated.
- There may be a minimum A$35.00 charge for all credit card chargebacks.
- Customer acknowledges and agrees that Company may pre-charge Customer's fees for the Services to its credit card supplied by Customer during registration for the Initial Term.
- You acknowledge, agree and authorize company to automatically bill and/or charge your credit card additional service in 12 month increments, unless terminated or cancelled by either party as provided in section 2.
- Company as Reseller or Licensor.Company is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party ("Non-Company Product"). Company shall not be responsible for any changes in the Services that cause the Non-Company Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-Company Product either sold, licensed or provided by Company to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of Company's obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-Company Product are limited to those rights extended to Customer by the manufacturer of such Non-Company Product. Customer is entitled to use any Non-Company Product supplied by Company only in connection with Customer's permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by Company to Customer through any Non-Company Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-Company Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.
- Internet Protocol (IP) Address Ownership.If Company assigns Customer an Internet Protocol ("IP") address for Customer's use, the right to use that IP address shall belong only to Company, and Customer shall have no right to use that IP address except as permitted by Company in its sole and absolute discretion in connection with the Services, during the term of this Agreement. Company shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Company, and Company reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
- grants to Company a license to cache the entirety of the Customer Content and Customer's web site, including content supplied by third parties, hosted by Company under this Agreement and
- agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.
- Resource Usage.
Company agrees to provide resources necessary to run actively scripted websites on our stated software stack, providing CPU time, bandwidth and disk space that fits the profile of the average website running our systems.
CPU, RAM, and Disk I/O - Company's shared systems allow for significant bursts in activity, but resources must be shared among all clients.
Computationally intensive or long running scripts are not permitted; generally speaking scripts should complete execution in 1-2 seconds at most. Database queries must also complete quickly, and databases should not be larger than is appropriate in a shared environment. No script or database queries should perform excessive disk reads/writes or maintain I/O patterns that cause performance issues for other sites.
While Company offers different package levels that have different levels of access to shared resources the automated management of this is done on a best effort basis only and is not a guarantee of a particular performance level.
The Customer should promptly act on any notice received from Company regarding resource usage. Any notice received should not be considered indicative that Company will manage any site's traffic, code, or databases - the Customer must take responsibility for optimizing their sites and databases for the traffic they receive before they affect other users.
Company utilizes several methods, automated and with human intervention, to monitor and control resource usage and reserves the right to limit access to those resources at any time, up to and including, suspending any site whose resource utilization exceeds normal levels, regardless of whether or not it is impacting performance at that time and regardless of package levels purchased.
- Unlimited Diskspace - Company will attempt to provide the disk space needed to power its customer's websites as far as is commercially reasonable. There is no arbitrary limit on the amount of data stored on an account, however the delivery of capacity is determined by availability, commercial viability, and the affect on the shared platform as a whole. As a general guide, 75,000 files/inodes may be asked to reduce the size of their account. Accounts exceeding 10GB/75,000 inodes/files will be excluded from our backup system without notice.
- Bandwidth Usage - Company will attempt to provide sufficient bandwidth for its customer's sites as far as is commercially viable. Excessive bandwidth usage from national media traffic or DOS attacks may result in the account being disabled without warning. Company's bandwidth is meant for delivering websites to end-users - high-bandwidth transfers between other servers is not permitted. The use of Company’s services solely for media streaming is not permitted.
- IMAP and mail storage - Company provides IMAP mail services to its customers, however we do not directly monitor size. Customers are responsible for making sure their inboxes do not reach unreasonable sizes and that the number of messages stored on their accounts does not exceed 10,000 messages or 2GB in size.
- Account Backups.Company encourages all customers to periodically perform their own backups. For a fee, Company will perform regular automated data backups on accounts equal to or less than 10 gigabytes in total size. Accounts exceeding 10 gigabytes will not be backed up. These backups are intended for disaster recovery purposes only, and are not intended for regular customer use.
While Company maintains the previously stated backups, this service is provided as a convenience only and Company assumes no liability as to the availability or completeness of client data backups. Each client is expected and encouraged to maintain backup copies of their own data. Data restores may be provided but are subject to additional service fees of up to A$100.00/restoration.
Upon Cancellation or Suspension for nonpayment, all data is purged from the server.
- Property Rights.
- Company hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use Company technology, products and services solely for the purpose of accessing and using the Services. Customer may not use Company's technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Company to Customer any Company technology, and all rights, titles and interests in and to any Company technology shall remain solely with Company. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company.
- Company owns all right, title and interest in and to the Services and Company's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems ("Marks"). Nothing in this Agreement constitutes a license to Customer to use or resell the Marks.
- Disclaimer of Warranty.
Customer agrees to use all Services and any information obtained through or from Company, at Customer's own risk. Customer acknowledges and agrees that Company exercises no control over, and accepts no responsibility for, the content of the information passing through Company's host computers, network hubs and points of presence or the Internet. The services provided under this agreement are provided on an as is, as available basis. None of company, its parent, subsidiary or affiliated corporations, or any of their respective employees, officers, directors, shareholders, affiliates, agents, attorneys, suppliers, third-party information providers, merchants, licensors or the like (each, a "company person") make any warranties of any kind, either expressed or implied, including but not limited to warranties of merchantability or fitness for a particular purpose, or non-infringement, for the services or any equipment company provides. No company person makes any warranties that the services will not be interrupted or error free; nor do any of them make any warranties as to the results that may be obtained from the use of the services or as to the accuracy, reliability or content of any information, services or merchandise contained in or provided through the services. Company is not liable, and expressly disclaims any liability, for the content of any data transferred either to or from customer or stored by customer or any of customer's customers via the services provided by company. No oral advice or written information given by any company person, will create a warranty; nor may you rely on any such information or advice. The terms of this section shall survive any termination of this Agreement.
- Limited Warranty.
- Company represents and warrants to Customer that the Services will be performed (a) in a manner consistent with industry standards reasonably applicable to the performance thereof; (b) at least at the same level of service as provided by Company generally to its other customers for the same services; and (c) in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company, in writing, within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Customer's sole and exclusive remedy, and Company's sole obligation, for breach of the foregoing warranties shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue Customer a credit in an amount equal to the current monthly service fees pro rated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.
- The foregoing warranties shall not apply to performance issues or defects in the Services (a) caused by factors outside of Company's reasonable control; (b) that resulted from any actions or inactions of Customer or any third parties; or (c) that resulted from Customer's equipment or any third-party equipment not within the sole control of Company. Except as expressly provided in this section, company makes no representations or warranties of any kind, express or implied, with respect to the services or any software provided under this agreement, including, without limitation, any warranty of merchantability, fitness for a particular purpose, title or non-infringement of third-party rights, and company hereby expressly disclaims the same. Without limiting the foregoing, any third-party software provided to customer hereunder is provided "as is" without any condition or warranty whatsoever. Company does not warrant that the services will be uninterrupted, error-free or completely secure.
- Limitation of Liability.
- In no event will company's liability in connection with the services, any software provided hereunder or any order, whether caused by failure to deliver, non-performance, defects, breach of warranty or otherwise, exceed the aggregate service fees paid to company by customer during the 12-month period immediately preceding the event giving rise to such liability.
- Company cannot guarantee continuous service, service at any particular time, integrity of data, information or content stored or transmitted via the internet. Company will not be liable for any unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content transmitted, received or stored on its system.
- Except as expressly provided below, neither party shall be liable in any way to the other party or any other person for any lost profits or revenues, loss of use, loss of data or costs of procurement of substitute goods, licenses or services or similar economic loss, or for any punitive, indirect, special, incidental, consequential or similar damages of any nature, whether foreseeable or not, under any warranty or other right hereunder, arising out of or in connection with the performance or non-performance of any order, or for any claim against the other party by a third party, regardless of whether it has been advised of the possibility of such claim or damages.
- The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 15(c) shall not apply to Customer's indemnification obligations.
- Notwithstanding anything to the contrary in this Agreement, Company's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
- Customer understands, acknowledges and agrees that if Company takes any corrective action under this Agreement because of an action of Customer or one if its customers or a reseller, that corrective action may adversely affect other customers of Customer or other reseller customers, and Customer agrees that Company shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Company.
- This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
- Customer agrees to indemnify, defend and hold harmless Company and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders, attorneys and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer's use of the Services, (ii) any violation by Customer of the AUP, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
- Free Domain Name
Qualifying web hosting purchases may include a free domain registration or transfer for the first year of service. When your web hosting account renews, the applicable then-current pricing will be applied to your account.
- Arbitration Agreement and Class Action Waiver.
- Purpose. This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and Company. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial.
Please read this Arbitration Agreement carefully. It provides that all disputes between you (sometimes referred to as “Customer”) and Company (sometimes referred to as “Company”) shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this Arbitration Agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees, if otherwise authorized by applicable law).
For the purpose of this Arbitration Agreement, “Company” means Company and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Company regarding any aspect of your relationship with Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
- WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
- Pre-Arbitration Dispute Resolution. For all Disputes you must first give Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to current official Company address. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Company does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.
- Arbitration Procedures. If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or Company may initiate arbitration proceedings. The Australian Centre for International Commercial Arbitration (“ACICA”), will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a representative or class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.
In consideration of the mutual promises set out below, the Parties agree:
- Any dispute, controversy or claim arising out of, relating to or in connection with:
- the Contract, including any question regarding its existence, validity or termination, and/or
- the Project,
shall be resolved by arbitration in accordance with the ACICA Arbitration Rules, irrespective of whether or not the dispute, controversy or claim arose prior to this Arbitration Agreement.
- This Arbitration Agreement supersedes and replaces any prior dispute resolution agreement between the Parties in respect of the Contract or the Project, whether contained in the Contract or otherwise.
- The seat of arbitration shall be Victoria, Australia unless otherwise agreed. The law governing this Arbitration Agreement shall be the substantive law that applies in the seat of the arbitration.
- The language of the arbitration shall be English unless otherwise agreed in writing.
- The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a representative or class arbitration
- The ACICA Arbitration Rules form part of this Arbitration Agreement.
- The parties agree that any hearing may be held virtually.
- In this Arbitration Agreement, reference to a Party includes a successor in title, a permitted substitute or a permitted assign of that Party.
- This Arbitration Agreement is made by the Parties “Company” and “Customer”
- Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the ACICA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
- Class Action Waiver. The parties agree that the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and Company specifically agree in writing to do so following initiation of the arbitration. Neither you, nor any other Member of Company and/or user of Company services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding.
- Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and Company are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). You give up those rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
- Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.
- Continuation. This Arbitration Agreement shall survive the termination of your contract with Company and your use of Company services.
- Independent Contractor.Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction.Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Services will be governed by the laws of the state of Victoria, Australia, excluding its conflict of law provisions.
- The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement; Amendments.This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company's web site.
- All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
- All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties' signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via electronic mail to the Customer's electronic mail address as maintained in Company's billing records.
- Company reserves the right to modify this Contract at any time.
- No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors.Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions.No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
- If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company's records of such execution shall be presumed accurate unless proven otherwise.
- Force Majeure.Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries.Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Customer acknowledges and agrees that Microsoft, and any supplier of third-party supplier that is identified as a third-party beneficiary in the Service Description, is an intended third-party beneficiary of the provisions set forth in this Agreement as they relate specifically to its products or services and shall have the right to enforce directly the terms and conditions of this Agreement with respect to its products or services against Customer as if it were a party to this Agreement.
- Government Regulations.Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
- Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.
CIVIL SUBPOENA POLICY
If you seek the identity or account information of a Company customer in connection with a civil legal matter, you must fax, mail, or serve the Company with a valid subpoena.
Submission of Subpoenas
The Company is located in at address below and all civil subpoenas should be served at that location or mailed to:
ibox7 PTY LTD.
Attn: General Counsel
35 Nobility Road
Craigieburn, VIC 3064
Upon the receipt of a validly issued civil subpoena, the Company will promptly notify the customer whose information is sought via e-mail or mail. If the circumstances do not amount to an emergency, the Company will not immediately produce the customer information sought by the subpoena and will provide the customer an opportunity to move to quash the subpoena in court.
Fees for Subpoena Compliance
The Company will charge the person or entity submitting the civil subpoena for costs associated with subpoena compliance. Payment must be made within thirty (30) days from the date of receipt of the Company invoice. Checks should be made out to the Company.
The Company's subpoena compliance costs are as follows:
Research - A$75.00/hour
Federal Express - Cost as Billed
Copies - A$.50/page
Compact Discs - A$10.00/per CD
Policies Regarding E-mail
The Company will act as per Australian laws. The Company reserves the right to request a copy of the complaint and any supporting documentation that demonstrates how the Company e-mail address is related to the pending litigation and the underlying subpoena.
- The Company maintains a zero tolerance policyfor use of its network in any manner associated with the transmission, distribution or delivery of any bulk e-mail, including unsolicited bulk or unsolicited commercial e-mail ("SPAM"). You may not use any our services or network to send SPAM. In addition, e-mail sent, or caused to be sent, to or through our network may not:
- Use or contain invalid or forged headers;
- Use or contain invalid or non-existent domain names;
- Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
- Use other means of deceptive addressing;
- Use a third party's internet domain name, or be relayed from or through a third party's equipment, without permission of the third party;
- Contain false or misleading information in the subject line or otherwise contain false or misleading content;
- Fail to comply with additional technical standards described below;
- Otherwise violate the Company's terms and conditions.
- The Company does not permit or authorize any attempt to use its network in a manner that could damage, disable, overburden or impair any aspect of any of our services, or that could interfere with any other party's use and enjoyment of any the Company product or service.
- We monitor all traffic to and from our servers. Customers suspected of using the Company's products and services for the purpose of sending SPAM will be investigated. It is the Company's policy to immediately remove and deactivate any offending web site sending SPAM.
- Customers may be asked to produce records that verify that explicit affirmative permission was obtained from a recipient before a mailing was sent. The Company may consider the lack of such proof of explicit affirmative permission of a questionable mailing.
- Customers are prohibited from maintaining open mail relays on their servers. Ignorance of the presence or operation of an open mail relay is not and will not be considered an acceptable excuse for its (the open mail relay) operation.
- Customers are prohibited from providing hosting services for websites that have been included in SPAM. Hosting includes, but is not limited to, hosting website(s), providing DNS services as well as website redirect services.
- If the Company believes that unauthorized or improper use is being made of any product or service, it may, without notice, take such action as it, in its sole discretion, deems appropriate, including blocking messages from a particular internet domain, mail server or IP address. The Company may immediately terminate any account on any product or service which it determines, in its sole discretion, is transmitting or is otherwise connected with any e-mail that violates this policy.
- The Company reserves the right to suspend and/or cancel permanently any and all services provided to a User without any notification. If a Customer is in violation of any term or condition of this SPAM Policy, the Acceptable Use Policy, User Agreement or uses of our services to disrupt or, in the Company's sole judgment, could disrupt the Company's business operations, the Company reserves the right to charge such Customer an administrative fee equal to A$100.00 per each piece of SPAM sent.
- To report an incidence of SPAM, please send an email to firstname.lastname@example.org
- Nothing in this policy is intended to grant any right to transmit or send e-mail to, or through, our network. Failure to enforce this policy in every instance does not amount to a waiver of the Company's rights.
- Unauthorized use of the Company's network in connection with the transmission of unsolicited e-mail, including the transmission of e-mail in violation of this policy, may result in civil and criminal penalties against the sender and those assisting the sender, including those provided by state and federal laws.
DOMAIN NAME DISPUTE & CLAIMS POLICY
Company supports the protection of intellectual property. Therefore, we have established the following policies regarding copyright infringement claims.
DOMAIN NAME DISPUTE CLAIMS
Please refer to the Uniform Domain Name Dispute Resolution Policy (the "UDRP") if you have a concern or dispute concerning a domain name. The UDRP covers domain names disputes; this Policy specifically excludes domain name disputes. Please see http://www.icann.org/udrp/udrp.htm.
If you believe that material located on a site hosted by Company or linked to by a site hosted by Company violates your copyright, you are encouraged to notify Company in accordance with its Australian Federal Government Copyright Amendment (Digital Agenda) Act 2000 . Company will respond to all such notices. The response by Company may include removing the infringing material or disabling all links to the infringing material if appropriate and required. Company will terminate a customer’s access to and use of the site if the customer is determined to be a repeat infringer of the copyrights or other intellectual property rights of Company or others. In the case of such termination, Company will have no obligation to provide a refund of any amounts previously paid to Company.
Note: The following information is provided solely for notifying Company that your copyrighted material may have been infringed.
WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (E.G., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OF E-MAIL ABUSE, ETC.) TO THE CONTACT LISTED BELOW. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT.
Written notification must be submitted to the following Designated Agent:
CLOUDDUKAN, ibox7 PTY LTD.
35 Nobility Road
Craigieburn, Victoria 3064
Under Australian laws, the Notification of Claimed Infringement must include ALL of the following:
- Physical or electronic signature of a person authorized to act on behalf of the copyright owner (i.e., merging a scanned handwritten signature into the electronic text or using public-key encryption technology).
- Identification of the copyrighted work claimed to have been infringed or a representative list if multiple works are involved.
- Identification of the material that is claimed to be infringing that should be removed or access to disabled and information reasonably sufficient to enable the online service provider to locate the material (usually a URL to the relevant page).
- Information reasonably sufficient to allow the online service provider to contact the complaining party (address, phone number, e-mail address).
- Statement that the complaining party has "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law."
- Statement that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner.
Upon receipt of notification of a claimed infringement, Company will respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, regardless of whether the material or activity is ultimately determined to be infringing; if selective action is not possible, Company will terminate the alleged infringer's Internet access.
The Company will also take reasonable steps to promptly notify the alleged infringer in writing of the claim against him or her, and that it has removed or disabled access to the material or terminated Internet access in line with Australian laws.
Upon receipt of notice from Company that a claim of infringement has been made and/or that the material has been removed or that access to it has been disabled, the Subscriber may provide a Counter Notification.
To be effective, a Counter Notification must meet ALL of the following requirements:
- It must be a written communication;
- It must be sent to the Service Provider's Designated Agent;
- It must include the following:
- A physical or electronic signature of the Subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement, under penalty of perjury, that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- The Subscriber's name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the Subscriber's address is located, or if the Subscriber's address is outside of the United States, for any judicial district in which the Service Provider may be found, and that the Subscriber will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a Counter Notification from the Subscriber containing the information as outlined above, Company will:
- Promptly provide the Complaining Party with a copy of the Counter Notification;
- Inform the Complaining Party that it will replace the removed material or cease disabling access to it within ten (10) business days following receipt of the Counter Notice;
- Replace the removed material or cease disabling access to the material in not less than ten (10), nor more than fourteen (14), business days following receipt of the Counter Notice, provided Service Provider's Designated Agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on Service Provider's network or system.
CAUTION: Pursuant to Australian infringement laws, any person who knowingly materially misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
It is Company's policy to provide for the termination, in appropriate circumstances, of Company customers and account holders who repeatedly violate this policy or are repeat infringers of copyrighted works, trademarks or any other intellectual property.
– Website Visitors
Like most website operators, Clouddukan collects non-personally-identifying information of the sort that web browsers and servers typically make available, such as the browser type, language preference, referring site, and the date and time of each visitor request. Clouddukan’s purpose in collecting non-personally identifying information is to better understand how Clouddukan’s visitors use its website. From time to time, Clouddukan may release non-personally-identifying information in the aggregate, e.g., by publishing a report on trends in the usage of its website.
Clouddukan also collects potentially personally-identifying information like Internet Protocol (IP) addresses for logged in users and for users leaving comments on http://Clouddukan.com blog posts. Clouddukan only discloses logged in user and commenter IP addresses under the same circumstances that it uses and discloses personally-identifying information as described below.
– Gathering of Personally-Identifying Information
Certain visitors to Clouddukan’s websites choose to interact with Clouddukan in ways that require Clouddukan to gather personally-identifying information. The amount and type of information that Clouddukan gathers depends on the nature of the interaction. For example, we ask visitors who sign up for a blog at http://Clouddukan.com to provide a username and email address.
The security of your Personal Information is important to us, but remember that no method of transmission over the Internet, or method of electronic storage is 100% secure. While we strive to use commercially acceptable means to protect your Personal Information, we cannot guarantee its absolute security.
– Links To External Sites
We have no control over, and assume no responsibility for the content, privacy policies or practices of any third party sites, products or services.
– Protection of Certain Personally-Identifying Information
Clouddukan discloses potentially personally-identifying and personally-identifying information only to those of its employees, contractors and affiliated organizations that (i) need to know that information in order to process it on Clouddukan’s behalf or to provide services available at Clouddukan’s website, and (ii) that have agreed not to disclose it to others. Some of those employees, contractors and affiliated organizations may be located outside of your home country; by using Clouddukan’s website, you consent to the transfer of such information to them. Clouddukan will not rent or sell potentially personally-identifying and personally-identifying information to anyone. Other than to its employees, contractors and affiliated organizations, as described above, Clouddukan discloses potentially personally-identifying and personally-identifying information only in response to a subpoena, court order or other governmental request, or when Clouddukan believes in good faith that disclosure is reasonably necessary to protect the property or rights of Clouddukan, third parties or the public at large.
If you are a registered user of http://Clouddukan.com and have supplied your email address, Clouddukan may occasionally send you an email to tell you about new features, solicit your feedback, or just keep you up to date with what’s going on with Clouddukan and our products. We primarily use our blog to communicate this type of information, so we expect to keep this type of email to a minimum. If you send us a request (for example via a support email or via one of our feedback mechanisms), we reserve the right to publish it in order to help us clarify or respond to your request or to help us support other users. Clouddukan takes all measures reasonably necessary to protect against the unauthorized access, use, alteration or destruction of potentially personally-identifying and personally-identifying information.
– Aggregated Statistics
Clouddukan may collect statistics about the behavior of visitors to its website. Clouddukan may display this information publicly or provide it to others. However, Clouddukan does not disclose your personally-identifying information.
– Affiliate Disclosure
This site uses affiliate links and does earn a commission from certain links. This does not affect your purchases or the price you may pay.
To enrich and perfect your online experience, Clouddukan uses “Cookies”, similar technologies and services provided by others to display personalized content, appropriate advertising and store your preferences on your computer.
Those who engage in transactions with Clouddukan – by purchasing Clouddukan’s services or products, are asked to provide additional information, including as necessary the personal and financial information required to process those transactions. In each case, Clouddukan collects such information only insofar as is necessary or appropriate to fulfill the purpose of the visitor’s interaction with Clouddukan. Clouddukan does not disclose personally-identifying information other than as described below. And visitors can always refuse to supply personally-identifying information, with the caveat that it may prevent them from engaging in certain website-related activities.
– Business Transfers
If Clouddukan, or substantially all of its assets, were acquired, or in the unlikely event that Clouddukan goes out of business or enters bankruptcy, user information would be one of the assets that is transferred or acquired by a third party. You acknowledge that such transfers may occur, and that any acquirer of Clouddukan may continue to use your personal information as set forth in this policy.