This document was last updated on the 6th of February 2020 and is effective from that date.
Your use of Cloud Column’s services is subject to the terms and conditions set forth in this General Services Agreement (the “Agreement”). This Agreement explains (i) what’s allowed when using our Services; (ii) the rights you have as a user of our Services; (iii) the rights Cloud Column has if you do something which is not allowed when using our Services; and (iv) many other important terms. This Agreement is a legal contract between you and Cloud Column and it is important that you read it carefully. If there is anything you do not understand in this Agreement, please lodge a support ticket.
Eligibility, Registration and Account Security
This section describes the eligibility criteria we require from all of our users. When you register to use our Services (as defined in the Agreement), we need to make sure that you are able to legally contract with Cloud Column.
All Subscribers are required to comply with applicable law and have certain obligations with respect to their use of Cloud Column Services. For example, you are required to keep a backup of your data, promptly remove any malware from your account, and cooperate with Cloud Column and utilize hardware and software that is compatible with the Services.
Cloud Column offers a great range of Services to suit everyone’s needs and at prices to suit everyone’s pockets. The fees you pay are based on the plan you choose and any add-on products you purchase. All payments are taken, in advance, for the full term of your plan.
Term and Automatic Renewal
To ensure uninterrupted service, Cloud Column’s services will automatically renew on your renewal date. This section explains this process in more detail.
Termination and Non-Payment
Cloud Column offers hosting plans for a fixed period of time that you select upon purchase (e.g., 1 month, 1 year, etc). Even though we do not want you to, we know that one day you might want to leave Cloud Column. The instructions to cancel or disable automatic renewal can be found here.
This section describes Cloud Column’s 14-Day Money-Back Guarantee. If you purchase an account with a fourteen (14) day money-back guarantee and cancel during the first forty (40) days of your term, you may receive a full refund of all basic hosting fees paid. This excludes domain name purchases which are final.
Customers are required to utilize server resources in an efficient and responsible manner. Excessive use of server CPU and memory resources by a customer can interfere with or prevent normal service performance for other customers.
Governing Law and Arbitration
The governing law and jurisdiction provision as set forth in Section 23 shall apply to all Subscribers.
The Agreement is an agreement between Cloud Column (“us,” “we,” “Cloud Column,” or the “Company”) and you (“Subscriber” or “you” and “your”). The Agreement sets forth the general terms and conditions of your use of the products and services made available by Cloud Column and through the Cloud Column website (collectively, the “Services”). By using the Services, you agree to be bound by the Agreement. Please read the Agreement carefully.
We may in our sole discretion change or modify the Agreement at any time. We will post a notice of any significant changes to the Agreement on the Cloud Column website for at least thirty (30) days after the changes are posted and will indicate the change and effective date at the top of the Agreement. Any changes or modifications to the Agreement shall be effective and binding on you as of the date indicated in a notice posted on this page. If no date is specified, your use of the Services after such changes or modifications shall constitute your acceptance of the Agreement as modified. If you do not agree to abide by this Agreement, you are not authorized to use or access the Services and your sole remedy is to cancel your account.
Use of the Services is also governed by the following policies and agreements, which are incorporated by reference. By using the Services, if applicable, you are also agreeing to the terms of the following policies and agreements.
Additional terms may apply to certain Services, and such additional terms will be made available to you and will be incorporated by reference with such Services.
- Acceptable Use Policy
- Data Request Policy
- Anti Spam Policy
- Ownership Dispute/Change Policy
- Domain Registration Agreement
2. ELIGIBILITY, REGISTRATION, AND ACCOUNT SECURITY
- The Services are intended solely for users who are eighteen (18) years of age or older. Any registration by, use of or access to the Services by anyone under eighteen (18) is unauthorized and in violation of this Agreement. By registering for or using the Services, you represent and warrant that you are eighteen (18) years of age or older.
- If you use the Services on behalf of another party, company or other organization, you represent and warrant that you are authorized to bind such party, company or organization to this Agreement and to act on behalf of such party, company or organization with respect to any actions you take in connection with the Services.
- You agree to (i) provide accurate, current and complete information about you and your organization (if applicable) as prompted by the registration forms (“Registration Data”); (ii) maintain the confidentiality of your password and other information related to the security of your account; (iii) maintain and promptly update the Registration Data and any other information you provide to Cloud Column, to keep such information accurate, current and complete; and (iv) be fully responsible for all use of your account and for any actions that take place through your account.
- You acknowledge and accept that despite the security measures Cloud Column takes in connection with the Services, Cloud Column’s system and/or Subscriber Websites (as defined below) may nonetheless become compromised, including without limitation, by hackers, Internet viruses, worms or Trojan horses, or the like. Under such circumstances, Cloud Column may take corrective action as it deems appropriate in its sole discretion and you acknowledge and agree that Cloud Column shall have no liability to you for any damage or loss that you may incur due to such corrective action. You further acknowledge and agree that you are solely responsible for backing-up all Subscriber Content and Subscriber Websites.
3. PROHIBITED PERSONS (COUNTRIES, REGIONS, ENTITIES, AND INDIVIDUALS)
The Services are subject to export control and economic sanctions laws and regulations administered or enforced by the Australian Department of Foreign Affairs and Trade (DFAT). You may not use the Services to export or re-export, or permit the export or re-export, of software or technical data in violation of Australian Trade Laws. In addition, by using the Services, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of DFAT sanctions (including Cuba, Iran, Syria, Sudan, North Korea, or the Crimea region of Ukraine); (b) listed on the Consolidated List of Sanctioned persons and entities maintained by DFAT or otherwise owned, controlled, or acting on behalf of such a person; or (c) otherwise a prohibited party under Australian Trade Laws. Unless otherwise provided with explicit written permission, Cloud Column also does not register, and prohibits the use of any of our Services in connection with, any Country-Code Top Level Domain Name (“ccTLD”) for any country or territory that is the target of DFAT sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services. For more information about sanctions, please see the DFAT Website.
4. CLOUD COLUMN CONTENT
Except for Subscriber Content (as defined below), all content available through the Services, including designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively, “Cloud Column Content”), are the property of Cloud Column or its licensors. No Cloud Column Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Cloud Column Content. Any use of the Cloud Column Content other than as specifically authorized herein is prohibited and will automatically terminate your rights with respect to your use of the Services and the Cloud Column Content granted herein. All rights of Cloud Column or its licensors that are not expressly granted in this Agreement are reserved to Cloud Column and its licensors.
5. SUBSCRIBER CONTENT
- You may be able to upload, store, publish, display and distribute information, text, photos, videos, emails, and other content on or through the Services (collectively, “Subscriber Content”). Subscriber Content includes any content posted by you and users of any of your websites hosted through the Services (“Subscriber Websites”). You are solely responsible for any and all Subscriber Content and any transactions or other activities conducted on or through Subscriber Websites. By posting or distributing Subscriber Content on or through the Services, you represent and warrant to Cloud Column that (i) you have all necessary rights to post or distribute such Subscriber Content, and (ii) your posting or distribution of such Subscriber Content does not infringe or violate the rights of any third party
- You acknowledge and agree that Cloud Column may, but is not obligated to, monitor Subscriber Content and may immediately take any corrective action in Cloud Column’s sole discretion, including without limitation removal of all or a portion of the Subscriber Content, and suspension or termination of any and all Services without refund of any pre-paid fees. You hereby agree that Cloud Column shall have no liability due to any corrective action that Cloud Column may take, including without limitation suspension or termination of Services.
- You hereby grant to Cloud Column, to the extent necessary to provide the Services, a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute Subscriber Content and the Subscriber Website; and (ii) make archival or back-up copies of the Subscriber Content and the Subscriber Website. Except for the rights expressly granted above, Cloud Column is not acquiring any right, title or interest in or to the Subscriber Content, all of which shall remain solely with you.
6. PAYMENT CARD INDUSTRY SECURITY STANDARD DISCLAIMER
Cloud Column complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of your data and billing information. However, you are solely responsible for the security of the data and billing information you collect on your Subscriber Website. Cloud Column will not monitor Subscriber Websites for compliance and therefore we are not able to verify whether your Subscriber Website complies with the PCI Standard. All of our payments are captured through Stripe, whose policies you can view at https://stripe.com/au/privacy.
7. COMPLIANCE WITH APPLICABLE LAW
For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) (“GDPR”) and any applicable national implementing laws in your jurisdiction, and with respect to your subscribers’ or customers’ personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) insofar as you may store personal data through your use of our Services only as permitted and subject to the terms of this Agreement. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).
To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data to us and that you have the necessary permission to allow us to receive and process (e.g., store) such personal data on your behalf. The additional data processing terms set forth here shall apply where you are a Controller subject to the GDPR.
8. ADDITIONAL USER RESPONSIBILITIES
- You will cooperate fully with Cloud Column in connection with Cloud Column’s provision of the Services. It is solely your responsibility to provide any equipment or software that may be necessary for you to use the Services. Delays in your performance of your obligations under this Agreement will extend the time for Cloud Column’s performance of its obligations that depend on your performance.
- You will be solely responsible for ensuring that all Subscriber Content and Subscriber Websites are compatible with the hardware and software used by Cloud Column to provide the Services, which hardware and software may be changed by Cloud Column from time to time in its sole discretion.
- You will be solely responsible for backing-up all Subscriber Content, including any Subscriber Websites off of Cloud Column’s servers. This is an affirmative duty. Cloud Column is not responsible for the loss of any Subscriber Content. Note: It is essential that Subscribers backup files offline, even if user purchases or has products, such as Site Backup and Restore.
- You will use your best efforts to ensure that the Subscriber Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other malicious code.
- You will not use the Services in any manner, as determined by Cloud Column in its sole discretion, that:
- Engages in or promotes illegal activity;
- Engages in or promotes behavior that is defamatory, harassing, abusive or otherwise objectionable;
- Infringes the intellectual property rights or other proprietary rights of any third party;
- Violates the privacy rights or publicity rights of any third party;
- Interferes with the operation of the Services; or
- Violates the terms and conditions of this Agreement or any of the policies or agreements incorporated by reference herein.
9. THIRD PARTY WEBSITES
The Services may contain links to other websites that are not owned or controlled by Cloud Column (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties (“Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites accessed through the Services or any Third Party Content posted on or made available through the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of the Third Party Sites or the Third Party Content. If you decide to access the Third Party Sites or to access or use any Third Party Content, you do so at your own risk and our terms and policies do not apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate.
- Fees Due. You will pay to Cloud Column all fees for the Services set forth in the registration form presented to you at the time you order the Services. All fees are non-refundable when paid except as otherwise provided herein.
- Pricing. Cloud Column may change our prices from time to time. Cloud Column may increase the fees for the Services (i) as permitted in the applicable Service description published on the Cloud Column website or in a promotional offer (collectively, the “Service Description”), and (ii) at any time on or after the expiration of the Initial Term by providing at least thirty (30) days prior written notice to you. Written notice may be in the form of (i) notices and updates provided through the Subscriber billing tool provided as part of the Services, (ii) notices and updates otherwise provided through the Services, or (iii) pricing notifications for renewal terms sent via email. It is your sole responsibility to periodically review all billing-related information provided by Cloud Column through the Subscriber billing tool or other methods of communications and notices sent or posted by Cloud Column.
- Taxes. The advertised fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services provided herein. All such taxes may be added to Cloud Column’s invoices for the fees as separate charges to be paid by you.
- Add-On Services. If you purchase certain add-on services from Cloud Column such as Domain Privacy, or security services, you may be required to apply the Service to a specific domain name to begin using the Service. Cloud Column is not responsible if you fail to apply an add-on to a domain name and will not provide refunds for any purchased but unused Services.
- Disputes. You have ninety (90) days to dispute any charge or payment processed by Cloud Column. If you have a question concerning a charge you believe is incorrect, please call us at lodge a support ticket on our website. If you initiate a chargeback, there may be a minimum charge of $50.00 plus applicable taxes to reactivate your account and we reserve the right to suspend your account for the duration of the dispute. Hosting accounts that have an open dispute may be disabled for security purposes.
- Fraud. It is a violation of this Agreement for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, and/or electronic checks. We may report all such misuses and fraudulent uses (as determined by us in our sole discretion) to appropriate government and law enforcement authorities, credit reporting services, financial institutions, and credit card companies.
11. TERM AND AUTOMATIC RENEWAL
- Initial Term. The initial term of the Services purchased by you will be for the time period set forth in the registration form presented to you when you order the Services (the “Initial Term”).
- Automatic Renewal. Unless you cancel the Services or disable the automatic renewal option as set forth in sub-section d below, following the expiration of the Initial Term the Services will automatically renew for successive periods of equal length as the Initial Term (each a “Renewal Term”). The Initial Term and any Renewal Terms shall be collectively referred to as the “Term.” For Services with Term lengths of three (3) months or longer, Cloud Column shall provide notice of the upcoming charge for each renewal to Subscriber no later than thirty (30) days prior to the payment date for each Renewal Term. The payment date for Services with Term lengths of three (3) month or longer shall be fifteen (15) days prior to the end of the then current Term. For accounts with a Term of one (1) month, the payment date will occur twenty-four (24) hours prior to the expiration of Subscriber’s Services without any prior notice.
- If you do not want the Services to automatically renew, you must opt out of the automatic renewal option at least fourteen (14) calendar days before the end of your then current Term or else your payment method on file will be charged as described above. The procedure to disable automatic renewal can be found in subsection (d) below. If you wish to terminate the Services, please review Section 13.
- Disabling automatic renewal option:
- Login to your Cloud Column Account, view the Product, and select Request Cancellation with the Cancellation Type “End of Billing Period”; or,
- Lodge a Support Ticket via the Cloud Column website.
12. TERMINATION AND NON-PAYMENT
- Failure to Pay: If you fail to pay the fees due for the Services, we may suspend or terminate your Services and pursue any collection costs incurred by Cloud Column, including without limitation, any arbitration and legal fees and Cloud Column’s reasonable legal fees. If any bank transfer fails to occur due to insufficient funds, Cloud Column may impose a minimum processing charge of $5.00 plus any applicable taxes. Accounts will not be reactivated until all outstanding amounts are paid. We are not responsible for any deleted or lost Subscriber Content that results from any suspension or termination of the Services.
- Termination Procedure: You may terminate the Services you purchased at any time during the Term by giving Cloud Column notice by lodging a support ticket or logging into you Cloud Column Account, viewing the Product, and selecting Request Cancellation with the Cancellation Type “Immediate”. The cancellation request is subject to verification of ownership of the account and/or domain, as determined in Cloud Column’s sole discretion. In the event of such cancellation, you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation subject to the terms of the fourteen (14) day money-back guarantee if applicable. After the account is canceled, all Subscriber Content will be permanently removed from the server. Please make a backup of all Subscriber Content before you contact Cloud Column to cancel your account.
- Termination by Cloud Column: Cloud Column may terminate your access to the Services, in whole or in part, without notice in the event that: (i) you fail to pay any fees due to Cloud Column; (ii) you violate the terms and conditions of this Agreement; (iii) your conduct may harm Cloud Column or others, cause Cloud Column or others to incur liability, or disrupt Cloud Column’s business operations (as determined by Cloud Column in its sole discretion); (iv) you are abusive toward Cloud Column staff in any manner; or (v) for any other lawful reason or as otherwise specified in this Agreement. In such event, Cloud Column will not refund to you any fees paid in advance of such termination, and you shall be obligated to pay all fees and charges accrued prior to the effectiveness of such termination. Cloud Column may also terminate your services for any reason by providing 30 days notice, offering alternate hosting services, and providing full refunds for any outstanding fees paid.
- Modification of Services: Cloud Column reserves the right to modify, change, or discontinue any aspect of the Services at any time.
- Data Deletion: Upon termination of the Services for any reason, Subscriber Content, Subscriber Websites, and other data will be deleted. You are solely responsible for maintaining backup copies of all Subscriber Content, Subscriber Websites, and other data. Cloud Column is not responsible for the loss of any Subscriber Content. It is essential that Subscribers backup files offline, even if Subscribers purchase or have products, such as Site Backup and Restore.
13. REFUND POLICY
- 14 Day Money-Back Guarantee
- If you purchase an account with a fourteen (14) day money-back guarantee, you may receive a full refund of all hosting fees paid (the “Money-Back Guarantee Refund”) if you cancel within the first fourteen (14) days of the Initial Term (the “Money-back Guarantee Period”). To request a Money-back Guarantee Refund, please contact our billing department by lodging a Support Ticket via the Cloud Column website. The Money-back Guarantee Refund shall only accrue and be due to you upon your compliance with, and subject in all respects to, the terms and conditions of this Section. Money-back Guarantee Refunds only apply to hosting services and certain add-on products or services and do not apply to domain registration fees, setup fees, or any fees for additional Services.
- The Money-back Guarantee Refund is valid for credit card payments only. Due to the costs associated with processing payments made by other methods, we are not able to offer the Money-back Guarantee Refund for other payment methods.
- Domain Registration Fees
- In the event the Subscriber requests a refund for services that includes a free domain name, the Subscriber shall be have the full cost of any provided domain deducted from any refund at regular pricing. Domain Names are non-refundable and, if purchased, become the property of you, the Subscriber.
- Cancellations After 14 days
- If a subscriber cancels their service after a money-back guarantee period, they will not be provided with a refund.
- Consumer Law
- Cloud Column will action any customer requests as per applicable Australian Consumer Law.
14. CLOUD COLUMN AS RESELLER OR LICENSOR
Cloud Column is a reseller or licensor of certain third party products and services (collectively, “Third Party Services”). Your purchase and use of Third Party Services are generally subject to the applicable third party’s terms and conditions. These services include (but are not limited to) Synergy Wholesale, Digital Ocean, Amazon Web Services, Ventra IP, and Polaris Mail. Cloud Column is not be responsible for any changes in the Services that cause any Third Party Services to become obsolete, require modification or alteration, or otherwise affect the performance of such Third Party Services. Any malfunction or manufacturer’s defects of Third Party Services either sold, licensed or provided by Cloud Column to you or purchased directly by you and used in connection with the Services will not be deemed a breach of Cloud Column’s obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of any Third Party Services are limited to those rights extended to you by the manufacturer of such Third Party Services. You are entitled to use Third Party Services supplied by Cloud Column only in connection with your permitted use of the Services unless otherwise expressly provided.
15 RESOURCE USAGE
- Acceptable Use Policy. Hosting space is intended for use in accordance with Cloud Column’s Acceptable Use Policy, and is limited to Web files, active e-mail and content of the hosted Subscriber Websites, not for storage (whether of media, e-mails, or other data). Hosting space further may not be used as offsite storage of electronic files, e-mail or FTP hosts. Cloud Column expressly reserves the right to review every user account for excessive usage of CPU, bandwidth, disk space and other resources that may be a result of your violation of this Agreement or the Acceptable Use Policy. Cloud Column may, in its sole discretion, terminate access to the Services, apply additional fees, or remove/delete Subscriber Content for those Subscriber accounts that are found to be in violation of Cloud Column policies. You hereby agree that Cloud Column shall have no liability due to any action that Cloud Column may take, including without limitation suspension or termination of Services in connection with your violation of this section.
- Hosting Space; Excessive Server Resources. Cloud Column sets defined limits on the amount of disk space a Subscriber can use for the Subscriber’s Website or charge fees based on the amount of storage used. Your use of Cloud Column’s resources must be consistent with a shared hosting environment and must otherwise comply with this Agreement. Accounts with a large number of files (inode count in excess of 200,000) can have an adverse effect on server performance. Similarly, accounts with an excessive number of database tables (i.e., in excess of 5000 database tables) or of an excessive database size (i.e., in excess of 10GB total database usage or 5GB database usage in a single database) negatively affect the performance of the server. In the event Subscriber exceeds these amounts, Cloud Column may request that a Subscriber’s number of files/inodes, database tables, or total database usage be reduced to ensure proper service performance. Cloud Column reserves the right to terminate a Subscriber account, with or without notice, for excessive use of resources that result in a degradation of server performance or the Services.
- Unlimited Bandwidth Cloud Column does not set arbitrary limits on the amount of visitor traffic Subscriber Websites can receive or on the amount of content a Subscriber can upload to Subscriber Websites in any given month, nor does Cloud Column charge additional fees based on the increased use of bandwidth, as long as the Subscriber’s use of the Services complies with this Agreement. In most cases, Subscriber Websites will be able to support as much traffic as the Subscriber can legitimately acquire. However, Cloud Column reserves the right to limit processor time, bandwidth, processes, or memory in cases where it is necessary to prevent negatively impacting other Subscribers. If a Subscriber uses a large amount of Bandwidth that is not sustainable (at Cloud Column’s discretion), a Subscriber will be required to purchase a third-party CDN from a provider of their choice.
16. PARKED DOMAIN SERVICES
By registering for the Services you agree that Cloud Column may point your domain name or DNS to one of Cloud Column’s or Cloud Column’s affiliates web pages as a default landing page, and that they may place advertising on your web page (the “Parked Pages”). You shall have no right to any compensation and shall not be entitled to receive any funds related to the monetization of your Parked Pages. If you do not wish for Cloud Column to display Parked Pages on your web page you can opt out of such practice. You can opt out of Parked Pages by updating the DNS of the domain name to point to another provider or by changing the default.html file stored on your account.
17. RESELLER PROGRAM
In addition to all terms and conditions described in this Agreement, the following shall also be applicable to a Subscriber participating in a Cloud Column Reseller Program (“Reseller”), utilizing their account to provide Reseller services:
- Reseller shall ensure that each Subscriber signed up by the Reseller complies with the terms and conditions of this Agreement.
- Reseller cannot make any modifications to this Agreement. Any such alterations shall be deemed a violation of this Agreement and could result in the cancellation of Reseller’s accounts. Cloud Column is not responsible for any modifications made to this Agreement by Reseller.
- In the event that a Subscriber signed up by a Reseller is determined to be in violation of this Agreement, the Reseller shall, upon receipt of notice of the violation, take prompt action to ensure that the account in question is updated to be in full compliance with this Agreement. In addition, Cloud Column, in its sole discretion, reserves the right to take action directly if Reseller fails to do so.
- Cloud Column is not responsible for the acts or omissions of Resellers. The Reseller hereby agrees to indemnify Cloud Column from and against any and all claims made by any Subscriber or third party arising from the Reseller’s acts or omissions.
- Cloud Column reserves the right to revise its Reseller Program at any time. Changes will take effect when posted online or on any date as set forth in a notice provided by us.
- Resellers assume all responsibility for billing and technical support for each of the Subscribers signed up by the Reseller. Cloud Column reserves the right to refuse inquiries made to customer support from Subscribers signed up by a Reseller.
18. TECHNICAL SUPPORT
- Except as described otherwise stated below, Cloud Column will provide technical support via our Support Portal on our Website. You will be required to provide as much information as possible to aid our investigation into any issues or problems. By utilizing Cloud Column’s Technical Support Services, you grant Cloud Column permission to access your account, if necessary, to resolve your issue. You agree that Cloud Column and its agents and employees are not liable for any damage resulting from the provision of customer support.
- Ineligibility for Technical Support Services: Cloud Column will not provide Technical Support Services if: (a) you are in breach of this Agreement; (b) the need for Technical Support Services is due to (i) any modification or attempted modification of the Services by you or any third party outside of Cloud Column’s control, or (ii) your failure or refusal to implement changes recommended by Cloud Column; or (c) you are abusive toward our staff in any manner.
You acknowledge and agree that your use of the Services, including any information or content obtained through the Services, is at your own risk. You further acknowledge and agree that Cloud Column exercises no control over, and accepts no responsibility for, the content of the information passing through Cloud Column’s host computers, network hubs and points of presence or the Internet.
20. LIMITED WARRANTY
THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” CLOUD COLUMN AND ITS AFFILIATES, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “CLOUD COLUMN PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES PROVIDED HEREUNDER. THE CLOUD COLUMN PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES; OR (III) AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICES. THE Cloud Column PARTIES ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM SUBSCRIBERS OR STORED BY SUBSCRIBERS ON OR THROUGH THE SERVICES. NO ADVICE OR INFORMATION GIVEN BY CLOUD COLUMN OR CLOUD COLUMN’S REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, SUPPORT REPRESENTATIVES, SHALL CREATE A WARRANTY. CLOUD COLUMN DOES NOT GUARANTEE THAT SUBSCRIBERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. CLOUD COLUMN DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICE OR CLOUD COLUMN IN PARTICULAR. THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
21. LIMITATION OF LIABILITY
- CLOUD COLUMN SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT WILL THE CLOUD COLUMN PARTIES BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY SUBSCRIBER CONTENT, SUBSCRIBER WEBSITE OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF CLOUD COLUMN IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CLOUD COLUMN’S LIABILITY TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO CLOUD COLUMN FOR THE SERVICES IN THE THREE (3) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU, THE SUBSCRIBER, MORE THAN ONE (1) YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, CLOUD COLUMN’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless the Cloud Column 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 Cloud Column Parties arising out of or relating to (i) your use of the Services, (ii) any breach or violation by you of this Agreement; or (iii) any of your acts or omissions, except to the extent any of the foregoing directly results from Cloud Column’s own gross negligence or willful misconduct. The terms of this section shall survive any termination of this Agreement.
23. GOVERNING LAW AND JURISDICTION
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of Queensland. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any suit, action or proceeding concerning this Agreement must be brought in a state or federal court located in the State of Queensland, Australia. You irrevocably consent to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum.
- Backups: For its own operational efficiencies and purposes, Cloud Column from time to time backs up data on its servers, but is under no obligation or duty to Subscriber to do so under this Agreement. IT IS SOLELY SUBSCRIBER’S DUTY AND RESPONSIBILITY TO BACKUP SUBSCRIBER’S FILES AND DATA ON CLOUD COLUMN SERVERS, AND under no circumstance will Cloud Column be liable to anyone FOR DAMAGES OF ANY KIND under any legal theory for loss of Subscriber files and/or data on any Cloud Column server. Cloud Column will not attempt to back up accounts that exceed 50,000 files or 30 Gigs of space for any reason and does not maintain any backups of dedicated accounts.
- Independent Contractor: Cloud Column and Subscriber are independent contractors and nothing contained in this Agreement places Cloud Column and Subscriber in the relationship of principal and agent, 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.
- Headings: The headings herein are for convenience only and are not part of this Agreement.
- Entire Agreement: 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.
- Severability: 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 (unless otherwise specified) thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions (unless otherwise specified) thereof shall remain in full force and effect.
- Waiver: 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; Successor: You may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Cloud Column. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Cloud Column 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 your consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- 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.
- 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 in any person other than the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, you acknowledge and agree that any supplier of a third-party product or service 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 specific