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Terms and Conditions

This document sets out the Terms and Conditions on which Primary Cloud Pty Ltd (ABN 48 137 754 262) supplies its Services to You. You are required to accept these Terms and Conditions when You place an Order. Once You have accepted these Terms and Conditions, Your Order(s) and these Terms and Conditions become a legal agreement between You and Primary Cloud.

Please read these Terms and Conditions carefully.

Once you have accepted these Terms and Conditions, a copy will be available at http://www.primarycloud.com.

1. DEFINITIONS AND INTERPRETATION

1.1     Definitions

In this Agreement, unless the context otherwise requires:

Acceptable Use Policy. means the Primary Cloud Acceptable Use Policy posted at http://www.primarycloud.com as amended from time to time.

ACMA. means the Australian Communications and Media Authority.

Agreement. means the agreement consisting of these terms and conditions and any Order(s) each as amended from time to time.

Business Day. means a day on which banks (as defined in the Banking Act 1959 (Cth)) are open for general banking business in Queensland, excluding Saturdays and Sundays.

Cabinet. means any relevant rack, cabinet or part thereof as set out in an Order.

Charges. means the charges in respect of a Service as set out or provided for in the applicable Order (as varied from time to time in accordance with this Agreement).

Commencement Date. means the date of this Agreement (being the date of the initial Order).

Confidential Information. of a party includes all information of a party marked as confidential or which the other party knows or ought reasonably to be aware is confidential (regardless of its form and whether the other party becomes aware of it before, on or after the date of this Agreement) but excludes information that is publicly known other than as a result of a breach of the obligations of confidentiality under this Agreement.

Data Services. means the data services described in the applicable Order.

Event of Default. occurs where:

(a)   You fail to pay any sum payable under this Agreement by the due date for payment;

(b)   You breach any provision of this Agreement and the breach is not capable of remedy;

(c)   You breach any provision of this Agreement which is capable of remedy and fail to remedy the breach within 7 days of the date of a notice from Us demanding that the breach be remedied;

(d)   You commit an act of bankruptcy;

(e)   any step is taken (including without limitation, an application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for:

(i)   Your winding up, dissolution, or administration; or

(ii)   Your entering into any arrangement, compromise or composition with or assignment for the benefit of Your creditors or any class of them,

Except for the purposes of a solvent reconstruction or amalgamation;

(iii)   a receiver, receiver and manager, or other controller, administrator or similar officer is appointed with respect to, or takes control of, You or any of Your assets and undertakings.

 

Force Majeure Event. means an event or cause beyond the reasonable control of the party claiming force majeure including, without limitation, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes or lockouts.

Intellectual Property Rights. means all forms of intellectual property rights which may subsist anywhere in the world, whether protected at common law or under statute, including, without limitation, patents, petty patents and utility marks, rights in designs, trademarks, signs and service marks, trade and business names, copyrights (including rights in computer software), and database rights, whether or not registered and including applications for registration of any such thing.

Interest Rate. means, at a particular date, 3% above the Commonwealth Bank of Australia corporate overdraft reference rate in effect on that date.

Location. means the premises at which the Services are provided.

Minimum Term. means the minimum term specified in the Order.

Order. means an online order that You have submitted to Us and which has been accepted by Us (as amended from time to time in accordance with this Agreement).

Our Equipment. means any equipment owned by Us and/or provided by Us to You for use in connection with the Services, other than equipment supplied by Us to You by outright sale.

Primary Cloud. means Primary Cloud Pty Ltd (ABN 48 137 754 262) and includes references to .We., .Our. and .Us..

Services. means the services and products described in the Order.

Software. means the software described in the Order.

Third Party Supplier. means another business or entity that supplies products, goods or services to Primary Cloud.

You. and .Your. means the person described in the Order.

Your Equipment. means any hardware, software, equipment, systems and cabling provided by You.

Work. means the work required to be performed by Us to enable the provision of the Services and includes any arrangements made with any Third Party Supplier in relation to the provision of the Services.

1.2     Interpretation

In this Agreement:

(a)   the singular includes the plural and vice versa;

(b)   other grammatical forms of defined expressions have corresponding meanings;

(c)   a reference to a document or agreement (including this Agreement) includes that document or agreement as novated, altered, supplemented or replaced;

(d)   references to clauses and schedules are references to clauses of and schedules to this Agreement;

(e)   references to .persons. or words implying natural persons include bodies corporate and Public Authorities;

(f)   including. and cognate expressions indicate what is included without limiting what may be included;

(g)   a reference to an agreement includes any legally enforceable arrangement, understanding, undertaking or representation whether or not in writing;

(h)   a reference to .property. or an .asset. includes a reference to any right or interest in, or right to use, property or assets, to future property or assets, to things in action and to intangible property or assets; and

(i)   headings are inserted for convenience and do not affect the interpretation of this document.

No provision or expression is to be construed against a party on the basis that the party (or its advisers) was responsible for the drafting of this document.

2. AGREEMENT

(a)   By submitting an Order You acknowledge that you are bound by this Agreement.

(b)   Primary Cloud reserves the right to refuse an Order in its absolute discretion and without providing any reason.

3. SERVICES

(a)   We will provide the Services to You on the terms of any relevant Order and this Agreement.

(b)   You will use the Services in accordance with this Agreement and all applicable laws.

4. SERVICE CHARGES AND PAYMENT

4.1     Service Charges

The Charges payable by You for the Services are payable in accordance with this clause and the relevant Order.

4.2     Data Charges

Data charges are calculated at the rates set out in the relevant Order and, in respect of each month during the term of the Agreement, shall be:

(a)   the total amount calculated at the rate per gigabyte specified in the relevant Order for inbound traffic; and

(b)   the total amount calculated at the rate per gigabyte specified in the relevant Order for outbound traffic.

For the purposes of determining the volume of inbound and outbound traffic, Primary Cloud shall determine the volume of traffic calculated by the number of gigabytes and the calculations of Primary Cloud shall be final and binding on the parties.

4.3     Other Charges

All other Charges payable by You are payable in accordance with this clause 4 and the relevant Order.

4.4     Basis of Charges

(a)   For the purpose of pro rata Charges, each month is treated as being 30 days except February which is treated as 28 days.

(b)   Charges may be pro rata for part months.

4.5     Payment

You must pay all amounts owing by You under this Agreement by credit card without set-off, counterclaim or deduction. Payments by any other method may only be made with Our prior written approval and may incur an additional processing fee.

4.6     Payment terms

(a)   You authorise Us to charge your credit card to pay for any Charges.

(b)   We will charge Your credit card monthly, in advance, for all monthly Charges specified in the Order.

(c)   We will charge Your credit card you monthly, in arrears, for all usage-based Charges and all other Charges specified in the Order.

(d)   If Your credit card payment of the Charges fails, We may immediately suspend Services to You and You will pay interest on the outstanding amount at the Interest Rate, which shall accrue daily from the due date for payment until the actual date of payment to Us.

4.7     Revised Charges

If, at any time, there is an increase in Our cost of providing the Services We may review and modify the Charges and advise You by notice in writing (the.Revised Charges.). The Revised Charges so advised will become the Charges effective from the date that is 7 Business Days after the date of the notice.

4.8     Term Contract

(a)   An amount equal to the aggregate of all minimum monthly Charges for each unexpired month of the Minimum Term is a debt owing to Us at the time We accept the relevant Order. You acknowledge that this is a reasonable estimate of the loss We will suffer in the event that this Agreement is terminated, or supply of the Service(s) is discontinued, prior to expiry of the Initial Period.

(b)   If supply of the Services is discontinued or this Agreement is terminated prior to expiry of the Minimum Term, other than pursuant to clause 16.5(c) of this Agreement, We may invoice You for the amount calculated in accordance with paragraph 4.8(a). You must pay that amount within 14 days of the date of the relevant invoice. If You fail to pay Us such amount within this period, You will pay interest on the outstanding amount at the Interest Rate, which shall accrue daily from the due date for payment until the actual date of payment to Us.