Terms of Conditions

Last Updated: June 11, 2017

1. Introduction
These are the Terms of Use for AusNimbus (hereinafter, the “Service”), including its sub-domains and mobile optimized version. These Terms shall also include any ancillary terms, guidelines, our Privacy Policy (available here), our Acceptable Use Policy (available here) and other guidelines made available by us from time to time and incorporated herein by reference. The Service is provided to you by New Iteration Pty Ltd. (hereinafter referred to as “AusNimbus”).

These Terms constitute a legally binding agreement between you and us. If you do not agree to these Terms, please, exit the Website and stop use of our Services.

The words us’, ‘its’, ‘ours’ and/or ‘we’, as used herein refer to our affiliates, assignees, successors and/or brands. As used herein, the terms ‘you’, ‘your’, and/or ‘yourself’ refer to you, a user/visitor/browser of our Website, whether registered under an account or not.

To prevent any breach of the Terms hereof and to enforce any available remedy, we reserve the right to undertake any technical, legal or administrative measures that we deem necessary, at any time, without prior notice and in our sole discretion.

These Terms include a jury trial and class action waiver, and require binding arbitration on an individual basis in order to resolve possible disputes. These Terms also limit the remedies that may be available to you in the event of a dispute with us.

2. Services

AusNimbus hereby agrees to furnish its cloud services (the “Services”) to the users that have either subscribed for a free account and/or a paid account (hereinafter, the “Subscriber”), subject to the following Terms of Service. Use of the AusNimbus service constitutes acceptance and agreement to these Terms of Service, and the term thereof will commence on the earlier date of your initial account registration or Service’s use, and shall continue in effect until terminated by us.

AusNimbus reserves the right to modify, amend, suspend, terminate, upgrade, update or otherwise modify the Services and the website, at any time and without notice.

AusNimbus may terminate the contractual relationship with Subscribers, in its sole and final discretion, upon prior thirty (30) days notice; provided, however, that any such affected Subscribers have paid for our Services beyond such thirty (30) day period. Accordingly, AusNimbus may provide Subscribers a pro rata refund of any remaining paid fees beyond such term.

3. Service modification

AusNimbus may change the Services’ functionalities and (any) applicable fees, at any time and at its sole and final discretion. Any changes to these Terms will be displayed on our website, and we may notify you through the website or by email. Please refer to the last effective date where changes were last undertaken by us. Your use of our Services after the effective date of any update– either by an account registration or simple use – thereby indicates your acceptance thereof.

4. Account

In order to use some or all of the functionalities and Services, you may need to register for an account. You are solely responsible for the activity that occurs on your account and for keeping your password secure and confidential. You must notify AusNimbus immediately of any change in your eligibility to use the Services, or if you suspect a breach of security or unauthorized use of your account. All Services provided by AusNimbus may be used for lawful purposes only. Transmission, storage or presentation of any information, data or material in violation of any Australian federal, state or city law is prohibited.

By activating your account with AusNimbus, you agree to these Terms, our Privacy Policy and the disclaimer of damages and limitation of liability sections thereinto. Upon requesting activation of an account, you are required to accept these policies.

AusNimbus may provide certain technical support to you as part of your paid Services. You are responsible for providing any and all technical support to your account users, unless your account users have a separate agreement with us to provide technical support to them.

5. Data backup

As a Subscriber, you hereby acknowledge and agree to use security precautions appropriate for your necessities. You are solely responsible for taking technical, managerial and security measures for the appropriate security, protection and backup of any and all of your content in our Services. AusNimbus makes no representation or warranty regarding the security of the Services or your user generated content.

6. Prohibited activities and acceptable use of our Services

You agree not to, and will not undertake, motivate, or facilitate the use of your account, either by you or by others to:

  • Infringe these Terms of Use or allow, encourage or facilitate others to.
  • Plagiarize and/or infringe the intellectual property rights or privacy rights of any third party.
  • Enable any process to data-mine the website (e.g. robots or similar data gathering and extraction tools).
  • Disturb the normal flow of Services provided within the Service.
  • Intercept or monitor activity on our systems without our permission.
  • Misrepresent your relationship with AusNimbus, or suggest or publish that AusNimbus or any of its affiliates or licensors endorses, sponsors, contributes to or provides support for your user generated content.
  • Publish the results of any benchmarking or studies that you conduct in connection with our Services.
  • Publish any press releases regarding your use of our Services, unless you obtain AusNimbus’ prior written approval.
  • Distribute, post or otherwise make available any user generated content or any content that:
    • infringes or endangers the intellectual property rights of any person (e.g. trademark, moral rights, trade secret, copyright, ancillary rights or other);
    • enables any act that could promote or cause discrimination, racism, harm, libel, hatred or violence against any race, individual or group;
    • endangers children and underage persons;
    • is or can be considered threatening, abusive, harassing, defamatory, libelous, derogatory or violent;
    • is or can be considered profane, scandalous, pornographic, indecent or otherwise objectionable;
    • is or allows illegal or fraudulent activities to take place;
    • is or may constitute a criminal or capital offense or otherwise infringes any applicable law; and/or
    • is or can be considered to be obscene, threatening/defamatory, plagiarized, firearms, tobacco, alcohol, marijuana, gambling, pornography, child pornography, binary options, Forex, pornographic or analogous.
  • Circumvent any and all maximum capacity thresholds for the Services, by any means;
  • Remit or otherwise make or cause to deliver unsolicited advertising, spam or other chain letters;
  • Collect, receive, transfer or disseminate any personally identifiable information of any person without consent from title holder; and/or
  • Pretend to be or misrepresent any affiliation with any legal entity or third party.

AusNimbus encourages you to report violations of our Terms of Use, Privacy Policy and Acceptable Use Policy immediately. AusNimbus has the right, but not the obligation, to monitor any activity and user generated content to determine compliance thereof, and to edit, refuse to post or remove any material, user generated content or any content submitted to or posted on our website or any other of our Services that we find to be in violation of our Terms of Use, Privacy Policy and/or Acceptable Use Policy or that is otherwise objectionable. You are solely responsible for your activities and any user generated content you post, transmit or otherwise make available via our Services.

You acknowledge and agree that we may report any activity that we believe may violate any law to law enforcement, regulators or other relevant third parties. You acknowledge and agree that any violation of the aforementioned provisions may result in the immediate termination of your access to the website and use of our Services.

You must immediately respond to any notice you receive claiming that your user generated content violates a third party’s rights, including notices under the Digital Millennium Copyright Act (‘DMCA’), and take corrective action, which may include but is not limited to promptly removing any such user generated content.

7. Traffic Usage

All containers are allocated a pre-defined bandwidth speed, your usage is currently not limited; however you will not be able to exceed the speed allocation. AusNimbus reserves the right to charge excess usage charges to users who have extremely high traffic usage or are found to be abusing this privilege.

8. Domain Names

In order to utilize some of our Services, you may be required to create a unique domain name, which must be in conformance with these Terms. AusNimbus reserves the right to deactivate any domain name and require that you use a different domain name if AusNimbus receives a notice by a third party that the domain name misappropriates or infringes a third party’s rights or if the domain name violates any section of these Terms of Use and/or Acceptable Use Policy and/or applicable law.

9. Service levels

Our Services are provided through the Internet and third party vendors’ platforms that AusNimbus does not control (such as cloud service providers), and therefore may be subject to delays, outages or other problems outside our control. Henceforth, AusNimbus is not responsible for any such delays or outages.

Any and all free Services are provided for your use and evaluation without any technical support or service level commitment.

More broadly, AusNimbus makes no service level-related representations, warranties, or covenants regarding Service’s uptime, connectivity, hosting conditions, load balancing, security, monitoring, backup, archiving, recovery, release management, change control, maintenance, availability, and the like, and will offer no Services’ credits for service levels you deem inadequate.

AusNimbus hereby reserves the right to discontinue, update, amend, improve, remove, change and/or otherwise modify any and all functionalities associated within the Services (including the underlying platforms and application programming interfaces (“APIs“). Henceforth, the Services may be substantially modified by us at any moment, and at our sole and final discretion. We will undertake reasonable efforts in order to properly notify you of any material changes to our website and Services.

10. Fees

No fees are due for any free trial Services, which may be used without charge up to certain thresholds which will be indicated by us from time to time on the website. If you require Services in excess of such free trial Services or exceed our thresholds, you must then upgrade your account to our paid Services.

Fees for any paid Services are payable and due based on the type of paid Service selected. You agree to pay AusNimbus any and all applicable fees to receive the paid Services, including for any “unit” of Service (as defined/indicated by us from time to time in the website) and for all usage by you or your users during the calendar month period.

AusNimbus reserves the right to modify any fees for any subsequent term by providing you with thirty (30) days prior notice. As a general rule, our fees are nonrefundable.

Fees for Services purchased as subscriptions are payable and due upon AusNimbus’ acceptance of an order and, for renewal of the Services, at the start of the renewal term. Fees for Services purchased as subscriptions are charged upfront on a calendar month or annual basis prior to the beginning of the term in which Services are to be provided. Fees for units consumed by you or your users other than through Service’s subscription are due and payable in arrears at the beginning of your billing period for all usage of Units by you or your users in the prior month and you will continue to accrue fees until terminated by you.

11. Billing

By the monthly account activation date anniversary, AusNimbus will deliver its Subscribers, by e-mail, an invoice in accordance with the applicable fees for Services rendered for the current month. When an invoice is delivered to the Subscriber, payment shall be remitted to AusNimbus by no later than the specified payment due date. AusNimbus shall be entitled to immediately terminate provision of the Services for Subscriber’s failure to make timely payments.

Pre-paid commitments come with a 20% bonus incentive for clients to budget and predict their usage. All pre-paid credits are non-refundable and expire after 1 year.

12. Payment processors

We use third-party payment processors such as credit card and/or PayPal to bill you for any Services purchased through the website. The processing of payments will be subject to the fees, terms, conditions and privacy policies of such payment processors. AusNimbus is not responsible for any and all errors by the payment processors.

All credit cards and PayPal accounts are billed automatically on a monthly basis. It is the Subscriber’s responsibility to ensure that they have sufficient credit to cover each transaction with us. In the event that there is insufficient credit in the account, we will send you an e-mail notification, at which point we will need to be provided with another credit card/payment processing account within 24 hours. If we do not receive a response within 24 hours, the account, and all sub-accounts therefrom will be suspended.

13. Refund policy

We offer a free tier trial for our Services, which are provided in full form for a determined, limited trial period. Afterwards, you may update to a paid account, and we do not offer a refund policy after upgrading your account to a paid one. No refunds are issued for setup charges, add-on charges, domain-registrations, add-on purchases, SSL certificates or overage charges. In case of violations to these Terms of Use – all refunds are forfeit.

14. Third party services

AusNimbus has entered into agreements with certain authorized third party providers in order to promote, market and support its Services. If you purchase any part of our Services through our network of business partners, AusNimbus confirms that it is responsible for providing the Services to its Subscribers under these Terms. Moreover, AusNimbus shall not be liable for: (i) the actions of its business partners; (ii) any additional obligations that our business partners have to our Subscribers; or (iii) any products or services that our business partners may supply to our Subscribers under any separate terms or agreements, which shall govern such provision.

For ease of clarification, our Terms of Use and our Privacy Policy shall not rule or apply to any additional obligations that our business partners have to our Subscribers.

15. Third party links

From time to time, our Site and Services may contain hyperlinks to other websites. These links are for your personal convenience and to provide you with further information which may be of interest to you. The provision of such links does not imply any endorsement of such third party websites (or their products and services). Some or all of the images and other content displayed on the Website are licensed and/or purchased stock photos, and are only for illustrative purposes, that is, they may not accurately purport the look and form of a certain item, product or service.

We do not always review the information, pricing, availability or fitness for use of such products and services and they will not necessarily be available or error free or serve your purposes, and any use thereof is at your sole risk. We do not make any endorsements or warranties, whether express or implied, regarding any third party websites (or their products and services). Any linked websites are ruled by their privacy policies, terms and conditions and legal disclaimers. Please read those documents, which will rule any interaction thereof.

16. Ownership

The trademarks, copyright, service marks, trade names and other intellectual and proprietary notices displayed on the Services and the Website are the property of – or otherwise are licensed to – AusNimbus or its licensors or affiliates, whether acknowledged (or not), and are protected under intellectual and proprietary rights in Australia and other jurisdictions throught the world.

Respective title holders may or may not be affiliated with us or our affiliates, partners and advertisers. No section hereof shall be construed as intent to grant to you any right transfer or interest in the Website or our Services, in whole or in part.

You acknowledge and agree that any and all infringing use or exploitation of copyrighted content in the Website and our Services may cause us, our affiliates, licensors or content providers irreparable injury, which may not be remedied solely at law, and therefore our affiliates, licensors or content providers may seek remedy for breach of these Terms of Use, either in equity or through injunctive or other equitable relief.

17. No Spam

We reserve the right to screen our content to locate and delete any spam chain or unsolicited / deceiving email letters. We will not tolerate, and we will not allow others to undertake through our Services, any and all massive delivery of unsolicited bulk communications to our users or to any third party.

Any commercial electronic communication (“CEM”) that you receive from us, our business partners, licensors, suppliers and affiliates will require your prior consent to such communication. Our CEMs will include measures in order for you to stop receiving them, usually through an unsubscribe link.

The Website may allow you to subscribe to our newsletter service, which may be provided by us or through an authorized third party. Through our newsletters, you may receive information according to your Subscriber preferences. As our Subscriber, you will receive a conspicuous communication indicating subscription therefor and you will be able to select the amount and type of emails received by you. If you wish to unsubscribe, you will find ‘unsubscribe’ and similar links on our CEMs, and also in your account preferences.

17. No Warranty

Neither AusNimbus, nor its affiliates, subsidiaries, officers, employees and agents warrantee that the Services will be error-free, uninterrupted, secure, or produce any particular results; or that any information, software, cloud service, reference guides and/or samples will be current, useful and/or valid, or that will produce any particular results or that the information obtained therefrom will be reliable or accurate. No advice or information given by AusNimbus or its employees, affiliates, contractors and/or agents shall create a guarantee.

18. Disclaimer of damages

AusNimbus cannot be held liable for system downtime, crashes or data loss. We cannot be held liable for any predicted estimate of profits, which a client would have gained if their website was functioning. Certain services provided by AusNimbus are provided by third parties. Thus, certain equipment, routing, software and programming used by AusNimbus are not directly owned or written by AusNimbus. Moreover, AusNimbus holds no responsibility for the use of our Subscribers’ accounts.

To the fullest extent allowable under applicable law, AusNimbus hereby expressly disclaims any and all representations and warranties of any kind with respect to the Website, including any and all liability arising out of or related to any purported facts or information and description of any information, products and/or Services, including all warranties of any kind, whether express or implied; including, without limitation, warranties of title, merchantability, accuracy, completeness, reliability, suitability, fitness for a particular purpose or non-infringement.

Your use of our Website is at your own risk, and therefore you hereby acknowledge and agree that we supply our Website and Services “as is”, “with all faults”, and “as available”, including all content, guides, sheets, step-by-step guides, reference guides, samples, forms, software, materials, services, functions, and/or information made available thereby. It shall be your own responsibility to ensure that any products, Services or information available through this Website meet your specific requirements.

19. Limitation of Liability

AusNimbus shall not be responsible for any claimed damages, including incidental and consequential damages, which may arise from AusNimbus’ Services becoming unavailable for any reason whatsoever. Furthermore, AusNimbus shall not be responsible for any claimed damages, including incidental or consequential damages, resulting from the corruption or deletion of any data from AusNimbus’ servers, or for any other type of personal damages or losses arising out of or related to your use of or inability to use the Services; however caused or however awarded, regardless of the theory of liability applied (including contract, warranty or tort), whether active, passive or imputed, including negligence, strict liability, product liability or other legal theory, regardless of the product or service offered by action or inaction by merchant; and even if you have been advised of the possibility of such damages.

Certain jurisdictions do not allow the exclusion or limitation of implied warranties or damages. Henceforth, if you fall under rule of such jurisdictions, part or all of the disclaimers and liability limitations mentioned herein may not apply to you, and you might have additional rights not limited by law.

20. Indemnification

You agree to indemnify, defend and hold AusNimbus and its independent contractors, affiliates, subsidiaries, officers, employees and agents, and their respective employees, agents and representatives, harmless from and against any and all actual or threatened proceedings (at law or in equity), suits, actions, damages, claims, deficiencies, payments, settlements, fines, judgments, costs, liabilities, losses and expenses (including, but not limited to, reasonable expert and attorney fees and disbursements) arising out of, caused or resulting from: (i) your conduct and any user content; (ii) your violation of these Terms and/or our Privacy Policy; or (iii) your violation of the rights of any third-party.

21. Violations

Violations of these Terms and/or our Privacy Policy should be referred to support@ausnimbus.com.au. All complaints will be investigated promptly in accordance with AusNimbus procedures in place. Failure to follow any term or condition may be grounds for immediate account deactivation.

For DMCA Takedown Notices and alleged intellectual property rights infringement within the Website, you may contact us at the aforementioned email. You must notify us of your claim with subject: “Takedown Request”. Once received, AusNimbus will study and consider your claim and, if it believes or has reason to believe any content on the Website infringes on another’s copyright, AusNimbus may delete it, disable or otherwise stop displaying it.

Your DMCA notification claim must be in writing and must at least contain the following information: (i) your signature and identification, or the ones the person authorized to act on behalf of you or the title holder; (ii) a clear and concise description of the content of which its copyright has allegedly been infringed; (iii) contact information (e.g. address and email); and (iv) a statement, under penalty of perjury, indicating that you have a good faith belief that the information provided in your claim is true and accurate.

22. Generals

Assignment. You may not assign or transfer these Terms of Service by operation of law or otherwise without our prior written consent. Notwithstanding the foregoing, we may assign any rights or obligations hereunder. Any rights not expressly granted herein are thereby reserved. These terms will inure to the benefit of any successors of the parties.

Export control. Your hereby agree not to use our Website and he Services if you or your users are barred from receiving them under any of export control laws (for example, if you or they are located in a jurisdiction that is subject to United States of America, European Union, Australia or Commonwealth sanctions regulations, which currently includes Cuba, Iran, North Korea, Sudan and Syria and which are subject to change as posted by the United States government).

Force Majeure. AusNimbus is not liable for any failure of performance on its obligations as set forth herein, where such failure arises from any cause beyond AusNimbus ‘s reasonable control, including but not limiting to, electronic, power, mechanic or Internet failure.

Headings. The titles of paragraphs in these Terms of Service are shown only for ease of reference and will not affect any interpretation therefrom.

No Waiver. Failure by AusNimbus to enforce any rights hereunder shall not be construed as a waiver of any rights with respect to the subject matter hereof.

No Relationship. You and AusNimbus are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms of Service.

Severability. If any provision of these Terms of Service is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of these Terms of Service will remain in full force and effect. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.

Taxes. Each party to these Terms of Use shall be individually –and not jointly– responsible to comply with the respective tax obligations applicable in its jurisdiction, including any income taxes and tax withholding obligations.

Waiver of Class Actions, Non-Individualized Relief. You acknowledge and accept that claims brought against AusNimbus shall be only on an individual basis and not as a plaintiff or class member in any possible future class or representative action or similar proceeding. Unless otherwise agreed by you and AusNimbus, you may not adjoin or consolidate any claim with more than one person’s; and you may not otherwise supervise or take over any form of a class, representative or consolidated proceeding.

Waiver of Jury Trial. The parties herein waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes be resolved by a competent judge.

Applicable Law. Your use of this Website and any cause of action, claim and/or dispute that might arise between the parties hereon, shall be subject to the laws of Australia, without regard to conflict of law principles.

Forum. You agree that any dispute arising from or relating to these Terms will be heard solely by a court or tribunal of competent jurisdiction in or nearest to the City of Melbourne, Victoria, Australia. If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorney’s fees, court costs, and disbursements in doing so. You agree that the unsuccessful party in any dispute arising from or relating to these Terms will be responsible for the reimbursement of the successful party’s reasonable attorney’s fees, court costs, and disbursements.

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