Online Service Agreement

This Online Service Agreement, together with any Order Form (defined in clause 1) the Cloud Happy Terms of Use and the Cloud Happy Privacy Policy, set out the agreement (this Agreement) under which Cloud Happy Pty Ltd ABN 26 603 035 972 (Cloud Happy, we, us, our) provides Services (defined in clause 2) to you or the company which you represent (the Customer, you).

1. Customer form, this agreement

a. This Online Service Agreement will apply to all the Customer’s dealings with Cloud Happy, including being incorporated in all agreements, quotations or orders, whether via Cloud Happy’s website, email or in any other form, under which Cloud Happy is to provide services to the Customer (each an Order Form) together with any additional terms included in such an Order Form (provided such additional terms are recorded in writing).

b. The Customer will be taken to have accepted this Agreement if the Customer accepts an Order Form, or if the Customer orders, accepts, pays for, uses or accesses any services provided by Cloud Happy after receiving or becoming aware of this Agreement or this Online Service Agreement.

c. In the event of any inconsistency between this Online Service Agreement, the Cloud Happy Terms of Use, the Cloud Happy Privacy Policy and any Order Form, the following order of precedence will apply (unless expressly stated otherwise in the relevant clause):

i. This Online Service Agreement;

ii. The Cloud Happy Terms of Use;

iii. The Cloud Happy Privacy Policy; and

iv. The Order Form.

2. Services

a. In consideration for the payment of the fees set out in the Order Form (Fees), Cloud Happy will provide the Customer with services set out in an Order Form (Services).

b. Unless otherwise agreed, Cloud Happy may, in its discretion:

i. not commence work on any Services until the Customer has paid any Fees payable in respect of such Services; and

ii. withhold delivery of Services until the Customer has paid an invoice in respect of such Services.

3. Consulting Services

If the Services to be provided by Cloud Happy include consulting services, Cloud Happy will perform digital marketing analysis and optimisation activities. This will involve:

a. accessing the Customer’s tools;

b. analysing the Customer’s data;

c. producing reports; and

d. providing recommendations,

(Consulting Services).

4. Hosted Services

If the Services to be provided by Cloud Happy include services to host the Customer’s website, application or other information or data (Hosted Services), the following terms apply unless otherwise specifically agreed in writing:

a. (hosted applications) The Hosted Services include unmodified open source analytics and content management applications (Hosted Applications). The hosted applications provide the Customer with analytics insight and manage data in the cloud.

b. (plugins) The Hosted Applications will be provided along with plugins developed by Cloud Happy. The plugins are Cloud Happy IP for the purposes of clause 12.

c. (hosting location) The Customer acknowledges that Cloud Happy uses storage servers that may be located outside Australia.

d. (service quality) While Cloud Happy will use its best efforts to select an appropriate hosting provider, it does not guarantee that:

i. the Hosted Services will be free from errors or defects; or

ii. the Hosted Services will be accessible or available at all times;

e. (security) Cloud Happy will use its best efforts to ensure that the Customer’s website, application or other information or data (Customer Data) is stored securely, however Cloud Happy does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Customer Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.

f. (backups & disaster recovery) Cloud Happy will use its best efforts to create scheduled daily backups of Customer Data stored by Cloud Happy. In the event that Customer Data is lost due to a system failure (e.g. a database or webserver crash), Cloud Happy will attempt to restore the Customer Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.

g. (troubleshooting) Cloud Happy’s Hosted Services does not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.

5. Customer obligations

5.1 Provide Information

The Customer must provide Cloud Happy with all documentation, information and assistance reasonably required for Cloud Happy to perform the Services.

5.2 Access to customer premises &  systems

The Customer agrees to provide Cloud Happy with access (including login details and passwords) online systems and/or third party accounts used by the Customer as reasonably required by Cloud Happy to perform the Services.

6. Third party terms and conditions

a. If the Services involve Cloud Happy acquiring goods and services supplied by a third party on the Customer’s behalf, or using third party software or services to deliver the Services, including Salesforce, Basecamp and Zendesk, the Customer acknowledges and agrees that:

i. third party terms & conditions (Third Party Terms) may apply; and

ii. the Customer Content may be provided to a third party.

b. The Customer agrees to any Third Party Terms applicable to any third party goods and services that are used in performing the Services or providing the Deliverables.

c. Cloud Happy will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.

7. Timing

a. As part of the Order Form or in the course of Cloud Happy performing the Services, the parties may agree a schedule for providing certain Services, including estimated dates of completion, deadlines or schedules (Schedules).

b. Cloud Happy will use its best efforts to meet these Schedules, however these are subject to change if unforeseen complexities arise. In these cases, Cloud Happy will use its best efforts to minimise the impact of such changes.

c. Cloud Happy reserves the right to revise Schedules in the event that the delay is caused by the Customer’s failure to provide timely feedback or other information reasonably requested by Cloud Happy in order to perform the Services.

8. Payment

8.1 Fees

a. The Customer must pay to Cloud Happy fees in the amounts and at the times set out in an Order Form or as otherwise agreed in writing (Fees).

b. If the Customer does not pay the Fees in accordance with an Order Form, Cloud Happy may suspend the Services.

9. Fees

9.1 Fees

a. The Customer must pay to Cloud Happy fees in the amounts and at the times set out in an Order Form or as otherwise agreed in writing (Fees).

b. If the Customer does not pay the Fees in accordance with an Order Form, Cloud Happy may suspend the Services.

9.2 Plans

We may organise some of the Services we offer into subscription offerings (Paid Plans), each of which will grant you with access to different additional features. Fees for Paid Plans are charged on a subscription basis. The amount of Fees and the method of billing vary depending on our current prices and billing process, as set out on our website or otherwise communicated to you.

9.3 Usage limits

Our Services may be subject to certain usage restrictions and limits. If you exceed the restriction or limit, we may revoke your access to some or all of the Services.

9.4 Payment methods

We use third-party payment providers (Payment Providers) to collect Fees. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

9.5 Taxes

Unless we specifically tell you otherwise, the Fees don’t include any taxes, excises, duties or levies (including any value-added or goods and services tax) (Taxes) that may be imposed under or in connection with these Terms and you will be responsible for the payment of such Taxes.

9.6 Downgrading subscriptions

If you choose to downgrade your subscription to a Paid Plan to a cheaper Paid Plan, the new Fees will kick in at the start of the next billing cycle. We don’t pro-rate downgrades in between billing cycles.

9.7 Upgrading subscriptions

If you choose to upgrade your subscription to a more expensive Paid Plan, the new Fees will kick in straight away and you agree to be billed for the upgraded plan for the full billing cycle in which you upgraded.

9.8 Loss of data from swapping subscriptions

Please note that upgrading or downgrading your subscription may cause loss of your account information, files and data. We won’t be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out you upgrading or downgrading your use of the Services.

10. Changes

a. The Customer must pay additional service fees for changes to Services requested by the Customer which are outside the scope set out in the relevant Order Form (Changes).

b. Unless otherwise agreed in writing, Cloud Happy may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.

11. Accreditations

Unless otherwise agreed in writing:

a. all displays or publications of any deliverables provided to the Customer as part of the Services (Deliverables) must, if requested by Cloud Happy, bear an accreditation and/or a copyright notice including Cloud Happy’s name in the form, size and location as directed by Cloud Happy; and

b. Cloud Happy retains the right to describe the Services and reproduce, publish and display the Deliverables in Cloud Happy’s portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.

12. Confidentiality & restraint

12.1 Confidentiality

a. Except as contemplated by this Agreement or an Order Form, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.

b. In this Agreement, ‘Confidential Information’ means information about or provided by a party to the other party that is by its nature confidential information, is designated by the owning party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge

12.2 Restraint

For the duration of any Order Form, and for 6 months thereafter, the Customer must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of Cloud Happy with which the Customer had contact during the course of an Agreement.

13. Intellectual property

13.1 Customer content

a. The Customer grants to Cloud Happy (and its subcontractors, employees or agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Customer Content to the extent reasonably required to perform any Services.

b. The Customer:

i. warrants that Cloud Happy’s use of Customer Content as contemplated by an Order Form will not infringe any third-party Intellectual Property Rights; and

ii. will indemnify Cloud Happy from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

13.2 Cloud Happy IP

a. Unless otherwise expressly agreed in an Order Form, the Customer will not under these terms or any Order Form acquire Intellectual Property Rights in any Cloud Happy IP. Any Developed IP will be solely and exclusively owned by Cloud Happy.

b. Cloud Happy grants to the Customer a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Cloud Happy IP and any Developed IP to the extent required for the Customer to use, enjoy the benefit of or exploit the Services and/or Deliverables.

13.3 Definitions

In this Agreement:

a. ‘Cloud Happy IP’ means all materials owned or licensed by Cloud Happy that is not Developed IP and any Intellectual Property Rights attaching to those materials.

b. ‘Customer Content’ means any documents or materials supplied by the Customer to Cloud Happy under or in connection with this agreement or an Order Form, including any Intellectual Property Rights attaching to those materials.

c. ‘Developed IP’ means any materials produced by Cloud Happy in the course of providing Services or Deliverables including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Customer or others, and any Intellectual Property Rights attaching to those materials.

d. ‘Intellectual Property Rights’ means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world

14. Warranties

14.1 Warranties given by the Cloud Happy

a. To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement or an Order Form are excluded.

b. Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Cloud Happy’s liability for breach of that non-excludable condition, warranty or guarantee will, at Cloud Happy’s option, be limited to:

i. in the case of goods, their replacement or the supply or equivalent goods or their repair; and

ii. in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

14.2 Warranties given by the customer

a. The Customer represents and warrants that it is proprietor of the domain name of the Customer’s website or is otherwise entitled to permit Cloud Happy to perform the Services.

15. Limitation of liability

Cloud Happy’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement:

a. is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill; and

b. is limited, insofar as concerns other liability, to the total money paid to Cloud Happy under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).

16. Indemnity

The Customer indemnifies Cloud Happy from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:

a. the Services;

b. any breach of this Agreement by the Customer; or

c. any negligent, fraudulent or criminal act or omission of the Customer or its personnel.

17. Subcontracting

Cloud Happy may subcontract or outsource any aspect of providing the Services and the Customer hereby consents to such subcontracting.

18. Cancellation

18.1 Cancellation by you

You may cancel your subscription or terminate your Order Form only in accordance with the conditions set out in our Order Form. Unless we expressly state otherwise:

a. cancellations will only be considered to be made as from the date that you cancel using the functionality provided on our website and any other notifications that you wish to cancel (including if made via email) will not be accepted; and

b. upon cancellation, you will be charged until the end of the billing cycle you have paid for and we do not offer pro-rated refunds or any other sort refunds for cancellations made by you. This means that if, for example, you have signed up for an annual subscription, we will not refund you any Fees if you cancel before the end of the year you have subscribed for.

18.2 Cancellation by us

To the extent permitted by law, we reserve the right to terminate an Order Form or to otherwise cancel your access to any or all of the Services or any part of the Services at any time without notice, for any reason, provided that we refund to you any Fees for Services which you have paid and not received (including a pro-rated refund as appropriate).

We may also terminate your access to any or all of the Services at any time without notice without issuing a refund if you breach any provision of this Agreement.

19. Dispute resolution

a. The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.

b. If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.

c. The parties acknowledge that compliance with this clause 18.1 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:

i. in the case of applications for urgent interlocutory relief; or

ii. a breach by another party of this clause 19.

20. Force majeure

20.1 If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this Agreement or an Order Form (other than an obligation to pay money) due to an event beyond its reasonable control (Force Majeure), the Affected Party must give to the other party prompt written notice of:

i. reasonable details of the Force Majeure; and

ii. so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.

20.2 Subject to compliance with clause 21.1, the relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure.

20.3 The Affected Party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.

21. General

21.1 Governing law

This Agreement is governed by the law applying in New South Wales, Australia.

21.2 Jurisdiction

Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

21.3 Terms of use & privacy

The Customer agrees to comply with, and agrees to ensure that its employees, contractors, agents, or any other users the Customer allows to use the Services will comply with, the clauses outlined in Cloud Happy’s Terms of Use and Privacy Policy.

21.4 Assignment

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).

21.5 Amendments

a. This Agreement may only be amended by a document signed by each party.

b. At least 30 days before the anniversary of the Commencement Date of this Agreement, Cloud Happy may propose a variation to the Agreement by giving written notice to the Customer. If the Customer continues to accept the Services, or otherwise indicates its assent to the variation, it will be taken to have accepted the variation.

21.6 Waiver

No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

21.7 Serverance

If any part of this Agreement is or becomes invalid, that part is severed from this Agreement and that severance does not limit or otherwise affect the remaining provisions of this Agreement.

21.8 Further acts and documents

Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.

21.9 Entire agreement

This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.