STANDARD TERMS AND CONDITIONS
Emantra Pty Ltd
Trading As Cloudable
ACN 116 306 453
ABN 98 116 306 453
Level 1, 201 Leichhardt Street
Brisbane QLD 4000
Tel 1800 728 953
“Customer” is the legal entity which you represent and is the user or proposed user of Cloudable services.
Cloudable and Customer are sometimes referred to herein jointly as the "Parties" and individually as a "Party".
1. Unless separately contracted, Cloudable services are provided under the following Terms and Conditions which are subject to change without notice. The current version is always available from www.cloudable.emantra.com.au.
2. Your use of Cloudable’s services is sufficient to deem your acceptance in full of the following Terms and Conditions. If you do not agree to these Terms and Conditions at any time, please discontinue use of the services and contact Cloudable.
3. The minimum service commitment term, unless otherwise contracted, is one (1) month and the service will continue unless withdrawn or cancelled as below.
4. Upon one month’s notice, Cloudable may for any reason withdraw the service, or change its specifications, SLA, and price. Customers who require certainty in these matters over time should seek an annual or longer term Service Contract from Cloudable.
5. Upon one month’s notice, Customer may for any reason cancel the service.
6. With respect to any components of the service no longer required, for example user licences or mailboxes, it is the customer’s responsibility to delete the relevant billing item from the control panel or otherwise advise Cloudable in writing to do so. Services not deleted in this way will continue to be reported to Microsoft and the relevant hosting fee will continue to be payable. No refunds will be issued.
7. A Tax Invoice for the setup fee if any will be rendered by email to the Customer's notified billing address in PDF format upon the date of your Order. The setup fee is due and payable on the service commencement date.
8. A Tax Invoice for the monthly ongoing fees will be rendered monthly by email to the Customer's notified billing address in PDF format starting on the service commencement date in respect of services for the month in advance. No hard copy invoices or statements will be issued.
9. Payment in full of invoice is due fourteen (14) days from invoice date and is to be made by EFT or cheque to Cloudable, as set out on the Tax Invoice.
10. Late payment or non-payment of Cloudable invoices within fourteen (14) days will void the customer’s entitlement to SLA penalty and support, any discount including prepayment discount. Failure to rectify payment after notification may result in legal action, service suspension, late fees, interest charges and a reinstatement fee.
11. Cloudable’s Quotation/Order Form will stipulate service specifications, SLA, price, basis for charging, payment details and services inclusions and exclusions. If you want to change or dispute any of these details, you must make this known to Cloudable before the service commencement date.
12. It is the responsibility of the Customer to ensure that its use of the service remains in compliance with all relevant software licence terms, including licences supplied by Cloudable. Any change in licence eligibility must be declared to Cloudable immediately, failure to do so will constitute a breach of these Terms and Conditions.
13. SERVICE LEVEL AGREEMENT (SLA)
a. Cloudable guarantees Service Uptime of 99.5%.
b. Service Uptime means the time during which the service is available on the internet or other relevant delivery connection to all or substantially all users and is effectively functional.
c. The SLA level indicated in percentage form means that Cloudable guarantees Service Uptime during any Service Month will exceed that percentage of total time during the month. For these purposes a Service Month is defined as a 30 day (720 hour) period commencing on the 1st day of each calendar month.
d. If the indicated Service Uptime SLA is not achieved within any calendar month, an SLA Rebate shall apply against Cloudable if claimed and proven, calculated at 10% of the relevant monthly service charge per completed 0.1% interval by which the achieved uptime falls below the SLA percentage, to a maximum aggregate of 50% of the relevant monthly service charge.
e. The SLA Rebate Claim must be submitted by email to email@example.com within five (5) business days from the date of the alleged unscheduled downtime.
f. The SLA Rebate Claim shall be the Customer’s sole remedy for any unscheduled downtime or other defect in the service.
g. The SLA Rebate Claim will not be considered if the Customer had, at the time of the alleged service default or at the time of the making of the Claim, invoices outstanding which were unpaid past their due date.
h. Within five (5) business days from the date an SLA Rebate Claim is received, Cloudable will process it and if validated will it credit the Customer’s account and give notice accordingly.
i.The customer will not be entitled to an SLA Rebate Claim if the unscheduled downtime was due to or caused directly or indirectly by:
i. An act or omission of the Customer, including the failure of any Customer-installed applications, patches or other software components.
ii. An unmanageable fault by a third-party supplier to Cloudable.
iii.A force majeure event.
iv.Scheduled Maintenance, see Clause 14 below.
14. Cloudable has a scheduled maintenance window each Friday morning between 12.00am and 5.00 am AEST. During this period, the service may become momentarily unavailable due to necessary and unavoidable maintenance and/or testing. Service downtime during this scheduled maintenance window is excluded from the calculation of unscheduled downtime for the purposes of an SLA Rebate Claim.
15. Customer acknowledges that it may become necessary, in order to eliminate critical and immediate security or safety risks, for Cloudable to perform urgent maintenance at a time other than the scheduled maintenance window. In this case, Cloudable will make every effort to contact the Customer and give as much advance notice as is possible, limit any such disruption, and not to undertake this maintenance between 6am and 6pm AEST on a business day.
16. Technical support required to sustain the service at the SLA level is included in the service price. Technical support for matters not directly related to the provision of the service may be available upon request from Cloudable at an agreed billable rate.
17. Cloudable will maintain a 24/7 telephone and job-ticket system to record and manage support requests.
18. Our commitment is to respond to support requests on a timely basis. Our response targets are as follows:
i. Severity 1 (Service disruption events which may jeopardise the SLA) - within SLA tolerance period
ii. Severity 2 (Component malfunctions or low-risk matters which do not affect the overall functionality of the service.) - within one business day
iii. Severity 3 (Any other support requests) - within two business days
19. Customer agrees not to use any Cloudable service in connection with any unlawful business or activity, including spamming, or any activity which infringes the rights of others including Cloudable, including the unlicensed use of software or intellectual property.
20. Customer agrees not to hack or attempt to hack, reverse engineer, intrude, view, copy or alter any data or systems used or hosted by Cloudable. Cloudable’s monitoring software will raise alert to such attempts which will be prosecuted to the full extent of the law.
21. Customer agrees not to resell or re-badge any Cloudable service without express approval.
22. Cloudable reserves the right not to host certain content in its sole discretion and to immediately withdraw service and take down content with respect to any violations of these terms and conditions. Cloudable may also have a legal obligation to refer such content or activity to the relevant authority.
23. The Parties must use their best endeavours and act in good faith to resolve any dispute arising in connection with the service or these Terms and Conditions by personal contact and negotiation between their respective senior management. If the Parties’ senior management have not resolved any dispute within ten business days of notice, the dispute must be escalated to the Chief Executive of each Party for further attempt at resolution. If the Parties’ Chief Executives cannot resolve the dispute within a further thirty business days of notification of the dispute, either Party may then take any additional action it deems necessary to resolve the dispute, including initiating legal proceedings.
24. INDEMNITY AND LIMITATION OF LIABILITY
a. The Customer indemnifies Cloudable and its related bodies corporate, employees, directors, agents or representatives on a full indemnity basis in respect of any losses, damages, liabilities, claims and expenses incurred (including but not limited to reasonable discovery, investigation and legal costs and defence or settlement costs) arising directly or indirectly as a result of:
i. any breach by the Customer of these Terms and Conditions;
ii. any negligent act or omission of the Customer or any of its employees, consultants, contractors, agents or representatives relating to these Terms and Conditions or any services provided under these Terms and Conditions;
iii. any claim made by an end user relating to or in connection with Services or their use by the Customer or the end user, or
iv. the negligent, fraudulent, criminal or other illegal or wrongful use by the Customer or any end user of any service supplied under these Terms and Conditions.
b.The total aggregate liability of Cloudable and its related bodies corporate, employees, directors, agents or representatives in respect of all claims made under these Terms and Conditions or otherwise in respect of the provision of the services (including any claims in tort or negligence) is limited as follows:
i. where the breach occurs as a result of a failure to meet the SERVICE LEVEL AGREEMENT (Refer Clause 13), the SLA Rebate specified in that Clause;
ii. in every other case, an amount equal to the total relevant charges paid by the Customer from the date of the claim.
c.Unless expressly stated to the contrary in this service or Service Contract, neither party is liable to the other for any indirect, special or consequential loss (including but not limited to loss of profits or loss of revenue, loss of data, loss of business or opportunity) however caused in connection with or related to this service or Service Contract.
d.All terms, conditions or warranties which may be implied into these Terms and Conditions are excluded to the fullest extent permitted by law.
a. Cloudable is a registered business name of and an operating division of Emantra Pty Ltd. Cloudable may provide the services to the Customer through the use of any of Emantra’s related bodies corporate, and/or invoice the Customer via any of Emantra’s related bodies corporate. The Customer acknowledges that any debt owed under these Terms and Conditions is a debt owed to Emantra Pty Ltd and that Emantra may take any necessary action in relation to any such debt notwithstanding that the right or obligation giving rise to that debt has been satisfied by a related body corporate of Cloudable or that the invoice for that debt has been provided to the Customer by a related body corporate of Cloudable.
b.Cloudable may refer to the Customer as a customer of Cloudable in any press release, marketing, or sales material unless prior notification in writing has been received.
Version 2016.2 Remains in effect until updated on the Cloudable Website.