End User Licence Agreement

Updated:

February 22, 2024

This Platform is operated and owned by Cloudwave Pty Ltd ACN 162 198 790 (Provider). Your access to and use of the Platform is subject to this End User Licence Agreement (“Agreement”). Use of the Platform indicates your acceptance of this Agreement. We may update this Agreement from time to time, and your continued use of the Platform constitutes acceptance by you of any updates. Please read this Agreement carefully before using the Platform.

1. Definitions

In this Agreement the following words and phrases shall have the following meanings, unless the context otherwise requires:

“Account” means an account to access and use the Platform;
“AWS” has the meaning provided for that term in the AWS Terms;
“AWS Terms” means the terms located at https://aws.amazon.com/service-terms;
"Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, software, business and domain names, inventions and other results of intellectual activity related to or connected with the Platform and Software;
“Loss” means any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
"Platform" means the platform managed by the Provider known as “Cloudwave”;
"Service" means the provision of the Platform and any ancillary services provided by the Provider which are not the subject of another agreement between you and the Provider;
“Software” means the software owned or licensed by Provider or which is otherwise contained within or accessed from the Platform and includes any software which is required by, relevant to, or used in conjunction with the Platform including but not limited to all object and source codes, copyright, inventions, discoveries, novel designs whether or not registrable as designs or patents, including any invention of or development or improvements to equipment, technology, methods or techniques relating to the software;
“us” means Provider and ‘we’ or ‘our’ shall be interpreted accordingly; and
"you" means the person or entity that accesses the Platform and ‘your’ shall be interpreted accordingly.

2. Interpretation

In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
Words denoting the singular include the plural and words denoting the plural include the singular.
The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.
Specifying anything in this Agreement after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
A reference to writing or written includes email.
Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

3. Access

Your use of this Platform is by a limited, non-exclusive, non-sublicensable licence granted strictly in accordance with this Agreement.
You acknowledge and agree with Provider that you will not, as a result of being granted a non-exclusive licence, acquire any rights (including without limitation Intellectual Property Rights) in the Software or the Platform other than the non-exclusive rights granted in accordance with this Agreement.
The Platform is available only to, and may only be used by, individuals who can form legally binding contracts under their applicable law.. If you do not qualify, please do not use our services.
In order to use this Platform, you require the equipment and connections necessary to access the World Wide Web. Without limitation, you are responsible for:

i) the provision of any such connection or access to the World Wide Web;

ii) the payment of any fees associated with such connection or access (such as those charged by an internet service provider or other online service); and

iii) the provision of all equipment necessary for you to make any such connection to the World Wide Web, including a computer and a modem.

4. Account

In order to use the Platform you will need to create an Account. In creating and using your Account:

you must not use false or misleading information and you must update your details should they have changed from the last time you used the Platform. We are not responsible for any Loss (including misdirected notifications) which may occur because you have not provided us with up to date, accurate or complete information;
you may be required to choose a username and password. You are responsible for the security of your login information and we will assume that anyone using your Account is authorised to do so by you and you are responsible for their actions. Under no circumstances will unauthorised access and use of your Account reduce your liability to us; and
you must notify us immediately if you become aware of any unauthorised use of your Account or other security breach.

5. Payment

All amounts paid to us under or in connection with this Agreement or any invoice issued by us are non-refundable to the extent permitted by law, including without limitation in the event of termination of this Agreement or any other arrangement by you for convenience.
In the event that you make an overpayment to us, that overpayment can be utilised towards future services that you obtain from us.

6. System Integrity & User Conduct

You must not use the Platform to:

impersonate or otherwise misrepresent your identity or affiliation with any other person or entity;
input, upload, post, disclose or transmit any material that is defamatory, obscene, indecent, lewd, violent, abusive, insulting, threatening, harassing, fraudulent or misleading or deceptive;
input, upload, post, disclose or transmit any material which is subject to Intellectual Property Rights of the Provider or any third party or breaches any duty of confidence or contractual obligation owed to the Provider or any third party;
input, upload, post, disclose or transmit any material that is unlawful, dangerous or violates any law;
send junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) to any person or company;
download and store electronically, reproduce, transmit, display, copy, distribute or use the Software or any materials contained in the Platform;
upload any files that contain viruses, Trojan horses, worms, time bombs, corrupted files or any other similar software or programs that may damage the operation of the Platform or another’s computer or property of another;
sub-license, rent, lease, transfer or attempt to assign the rights in the Platform or the Software to any other person and any dealing in contravention of this sub-clause shall be ineffective;
falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Platform;
conduct, display, or forward surveys, contests, pyramid schemes, or chain letters;
interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform;
attempt to gain unauthorised access to the Platform or computer systems or networks connected to the Platform through any means;
commit forgery (or attempted forgery), harass any individual, or harm minors in any way;
collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;
contravene or breach any applicable state, Commonwealth or international law, convention or regulation.

You acknowledge and agree that you must not:

use the Platform for any purpose other than the purpose for which it was designed and intended;
commit or permit any act which may interfere with the use of the Platform by any other user;
infringe any third party’s rights or violate any applicable laws;
create liability for the Provider;
damage the credibility or integrity of the Platform or the Provider;
copy, store or otherwise access any information contained in the platform for purposes not expressly permitted in this Agreement;
tamper with, hinder the operation of or make unauthorised modifications to the Platform or any part thereof;
damage or modify the Software or the Platform or any part thereof;
reverse engineer, decompile, disassemble or otherwise attempt to read the source code of the Software or the Platform or any part thereof;
copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the Software or any content within the Platform or any part thereof; or
modify, alter, adapt or amend the Software or any content within the Platform or any part thereof in any way.

AWS & Links

You acknowledge and agree that the AWS Terms apply to your use of the Platform and any content and programs made available on the Platform and you agree to be bound by those AWS Terms. A breach of the AWS Terms constitutes a breach of this Agreement.
This Platform may contain third party programs and functions, including those maintained or supplied by AWS or others (Third Party Programs). Those Third Party Programs are not under the control of Provider and Provider is not responsible for the content, availability, functionality and defects of the Third Party Programs or any webcasting or other transmission received from any such Third Party Programs.
Neither the Provider nor its officers, directors, employees, agents, or related bodies corporate recommend or endorse the content of any third party Third Party Programs which may be linked to or from the Platform, or Services or services of any third party organisations mentioned or described on this Platform or linked to or from this Platform. You acknowledge that you use any Third Party Programs at your own risk.

Intellectual Property Rights

The information, names, text materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, and control features of the Platform (Content) is protected by Intellectual Property Rights.
The Content, the Software and the Platform are protected by Intellectual Property Rights. You acknowledge that Provider is the owner of these rights, with our affiliates or other third party licensors including AWS.
All Services and company names and logos contained within the Platform are the trade marks, service marks or trading names of their respective owners, including Provider.
You acknowledge and agree that no right, title or interest in any of the Intellectual Property Rights in the Content, the Software or the Platform is transferred or granted to you, other than the rights granted expressly by this Agreement.
You agree that:

i) any Intellectual Property Rights created, formulated or discovered by you through the use or access to the Software or the Platform will be the sole and exclusive property of Provider;

ii) you will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in the Intellectual Property Rights created under to us.

6. You warrant that any data you input into the Platform (Client Data) will not:

i) breach the provisions of any law, statute or regulation;

ii) infringe the Intellectual Property Rights or other legal rights of any person; or

iii) give rise to any cause of action against us,

in each case in any jurisdiction and under any applicable law.

Information Provided and Privacy

The Client Data will be used in accordance with this Agreement, our Privacy Policy and the AWS Terms.

Warranties

The Provider does not warrant that:

i) the Software or the Platform will provide any function for which it is not specifically designed;

ii) the Software or the Platform will provide any minimum level of performance;

iii) the Software or the Platform will be virus free or free of performance anomalies or be operational without interruption.

2. You warrant to us that at the time of entering the Platform, you were not relying on any representation made by us.

3. Except as expressly provided to the contrary, and to the extent permitted by law, we make no representations or warranties of any kind, express or implied as to the operation of your access to or the results of your access to the Software or the Platform (including any related or linked websites) or the correctness, accuracy, timeliness, or completeness or reliability of the information, content, materials or Services included on the Platform.

Exclusion and Limitation of Liability

The Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Subject to the other terms of this clause 11, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this Agreement to the maximum extent permitted by law.
Subject to the other terms of this clause 11, the Provider’s maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with this Agreement, including any breach by the Provider of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by you to the Provider under this Agreement in the 1-month period preceding the matter or event giving rise to the claim.
Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
If the Provider is liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider’s total liability to you for that failure is limited to, at the option of the Provider:

i) in the case of services, the resupply of the services or the payment of the cost of resupply; and

ii) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.

5. Without limitation to the other terms of this clause 11, the Provider excludes any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.

6. Notwithstanding anything else in this clause 11, the Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by you or your Personnel.

7. Without limiting the above, you release us from any Loss arising from the use of, or reliance on, the Software or the Platform, whether or not caused by any negligent act or omission by us including but not limited to:

loss of use, data or profits arising out of or in connection with the use of or the inability to use the Software or the Platform;
your reliance on the Software or the Platform;
the statements or actions of any employee or agent of the Provider;
any unauthorised access to or alteration of your transmissions or data;
any information that is sent or received or not sent or received;
any failure to store or loss of data or files or other content;
your fraudulent, negligent or otherwise unlawful behaviour;
any delay or interruption of the Software or the Platform;
any loss incurred as a result of a third party obtaining your access details, either with or without your knowledge; and
any loss or damages in relation to the supply of services on or in relation to this Platform and any advertisement placed on the Platform or information made available on the Platform.

Indemnity

You indemnify the Provider against, and hold the Provider harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Provider arising out of or in connection with:
your breach or negligent performance or non-performance of this Agreement;
the enforcement of this Agreement.
any claim made against the Provider for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with your use of the Services.
You must make payments under this clause 12:
in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
Except where expressly stated to the contrary in this Agreement, the rights of a party under this clause 12 are in addition to any other rights available to that party whether those rights are provided for under this Agreement or by law.
It is not necessary for the Provider to incur expense or make payment before enforcing a right of indemnity under this clause 12.
The indemnities in this clause 12:
are continuing obligations on you, independent from its other obligations under this Agreement and survive termination or expiry of this Agreement; and
are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.

Upgrades

You acknowledge and agree that this Agreement applies to updates, supplements and add on components of the Software and the Platform together with any other terms along with the update, supplement or add on component which Provider provides.
The Provider reserves the right to discontinue the provision of the Services at any time without notice.

Breach and Termination

If the Provider reasonably considers that you are using the Platform in breach of this Agreement, the Provider reserves the right to remove any infringing data, file, content or material from the Platform and the Provider shall have no liability to you.
The Provider reserves the right to deny you access to, or use of, all or part of the Platform, without prior notice, if you engage in any conduct that the Provider believes, in its sole discretion:

i) violates any term or provision of this Agreement or any other terms or policies of the Provider in place from time to time; or

ii) violates the rights of the Provider or any third party; or

iii) is otherwise inappropriate for continued access and use of the Platform.

The Provider may terminate your right to access to, or use of, all or part of the Platform, immediately on written notice to you if you:

i) commit a material breach of this Agreement, which is capable of remedy, and you fail to remedy the breach within a reasonable time of a written notice to do so;

ii) commit a material breach of this Agreement which cannot be remedied;

iii) are repeatedly in breach of this Agreement; or

iv) are the subject of a bankruptcy order, or become insolvent, or make any arrangement or composition with or assignment for the benefit of your creditors, or if you go into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over your assets.

On termination or expiry of this Agreement your right to use the Platform shall cease.
Termination of your access to the Platform shall be without prejudice to the rights of the parties accrued before termination. All restrictions imposed on you, disclaimers and limitations of liability set out in this Agreement will survive termination.

General

The Provider may from time to time amend, update, or change the Platform, including this Agreement, without prior notice.
This Agreement constitute the entire agreement between you and the Provider with respect to this Platform, and the Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the Platform.
No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.
If any provision of this Agreement is found to be invalid or unenforceable, that provision shall be enforced to the maximum extent possible and will be deemed deleted to the extent that it is not enforceable, and the remaining provisions of the Terms of Use shall remain in full force and effect.
The failure by the Provider to insist upon or enforce strict performance of any of this Agreement will not be construed as a waiver of any right or remedy of the Provider in respect of any existing or subsequent breach of this Agreement.
No waiver by a party of a provision of this Agreement is binding unless made in writing.
The laws of New South Wales, Australia govern this Agreement. You hereby consent and submit to the non-exclusive jurisdiction and venue of the Courts of New South Wales and the Commonwealth of Australia for any cause of action relating to or arising under this Agreement.
The Provider operates the Platform in Australia. Information contained on the Platform may not be appropriate or available for use in other locations. If you access the Platform from other locations, you do so at your own initiative and you are solely responsible for compliance with local laws.
Where possible, the obligations of the parties under this Agreement will indefinitely survive the finalisation or discontinuance of this Agreement.
This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Agreement.
The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.
You may not assign any part of your rights, title, interest and obligations pursuant to this Agreement to a third party without obtaining our prior written consent, which shall not be unreasonably withheld. We may assign our rights, title, interest and obligations pursuant to this Agreement to a third party without your consent or notice to you.

‍