These Platform Terms of Service were last amended on 26th August 2014.
“Mclowd”, “We” or “Us” refers to Mclowd Pty Ltd, ABN 58 155 700 208, a company incorporated in the State of New South Wales, Australia.
Mclowd provides access to a free platform for supporting Self Managed Super Fund (“SMSF”) accounting as well as a services Marketplace where Users of the accounting platform can find individuals (“Contractors”) who may assist them.
USE SUBJECT TO THESE TERMS OF SERVICE
Access to the website http://mclowd.com; http://app.mclowd.com and related software (collectively the “Services”) is conditional upon Your acceptance of the following Terms of Service (the “Terms of Service”). You should not access or use the Services until You have read and accepted all these Terms of Service.
Unless explicitly stated otherwise, any new features which are subsequently added to the current Services shall be subject to these Terms of Service.
Mclowd reserves the right to change these Terms of Service at any time without notice by updating this posting and Your continued use of the Services will be considered evidence of Your acceptance of any such changes.
In addition, when using the Services You will be subject to any posted guidelines or applicable rules which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into these Terms of Service.
“User”, “Users”, “You” and “Yours” refers to anyone accessing the Services.
You understand that by using the Services You agree to be bound by these Terms of Service. If You are agreeing to these Terms of Service on behalf of an entity, You represent and warrant that You have the authority to bind that entity, in which case the terms “User”, “Users”, “You” and “Yours” will refer and apply to that entity.The Services are only available to individuals or entities capable of forming binding legal agreements under applicable law. For the avoidance of doubt the Services are not available to Users who are under 18 years of age.
Each User is responsible for what occurs on their Account, and must report any unauthorised use to Us.
GRANT OF LICENCE
Mclowd grants You a non-exclusive licence to access and use the Services. The licence granted by these Terms of Service commences upon completion of the User registration process and subject to observance of Your obligations under these Terms of Service, this licence will continue until terminated in accordance with Section 14.
As a Channel Partner You will also be entitled to grant access to Your Clients provided that such access is subject to the Platform Terms of Service (Individual User Version):
You are responsible for obtaining access to the Services and that access may involve third party fees (such as Internet service provider charges). You are responsible for those fees. In addition, You must provide and are responsible for all equipment necessary to access the Services.
USER ACCOUNT, PASSWORD AND SECURITY
To begin using the Services a User must open an account (“Account”).
You will be allocated a username and password as part of the Account registration process. You are solely responsible for maintaining the confidentiality of this username and password, and are entirely responsible for any and all access to the Services which occurs under Your Account. You agree to immediately notify Mclowd of any unauthorised use of Your Account or any other breach of security of which You become aware.
Mclowd cannot and will not be liable for any loss or damage arising from Your failure to comply with this Section 7.
You understand that all information, data, text, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the User from whom such Content originated.
This means that You, and not Mclowd, are entirely responsible for all Content that You make available via the Services. Mclowd does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Mclowd be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content made available via the Services.
You agree not to use the Services to:
a) make available any Content that is unlawful, threatening, defamatory or otherwise objectionable;
b) harm minors in any way;
c) impersonate any person or entity;
d) make available any Content that You do not have a right to make available under any law or under contractual or fiduciary relationships;
e) make available any Content that infringes the intellectual property rights of any party;
f) make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and
g) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services.
You acknowledge that Mclowd does not pre-screen Content, but that Mclowd shall have the right (but not the obligation) in its sole discretion to refuse or move any Content that is available via the Services.
Without limiting the foregoing, Mclowd shall have the right to remove any Content that violates these Terms of Service or is otherwise objectionable. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You acknowledge and agree that Mclowd may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
(a) comply with legal process;
(b) enforce these Terms of Service;
(c) respond to claims that any Content violates the rights of third-parties; or
(d) protect the rights, property, or personal safety of Mclowd, its Users and the public.
You understand that the technical processing and transmission of the Services, including Your Content, may involve:
(a) transmissions over various networks; and
(b) changes to conform and adapt to technical requirements of connecting networks or devices.
The Mclowd Marketplace (http://marketplace.mclowd.com) is a website which allows users to identify and contact individuals who may be able to assist them with their use of the Services (“Contractors”).
Access to the Marketplace is subject to the Marketplace Terms of Service. which are incorporated herein by reference.
COMPLIANCE WITH LAWS
Your use of the Services is subject to all applicable local, state, national and international laws and regulations and You agree to comply with the laws of Australia and other countries (including without limitation the User’s country of residence) regarding the export or transmission of technical data through the Services.
You agree to indemnify and hold Mclowd, its officers and employees, harmless from any claims, actions, applications, arbitration, causes of action, complaints, costs, debts due, demands, terminations, enquiries, judgments and verdicts, at law, in equity or arising under any statute or award (including legal costs), by any third party due to or arising out of Content You submit, post, transmit or make available through the Services, Your use of these Services, including without limitation Your breach of these Terms of Service, or Your violation of any rights of another.
You acknowledge that Mclowd may establish general practices and limits concerning Your use of the Services. You agree that Mclowd has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Services. You acknowledge that Mclowd reserves the right to log off Accounts that are inactive for an extended period of time. You further acknowledge that Mclowd reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
MODIFICATIONS TO SERVICE
Mclowd reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Mclowd shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Services.
You agree that Mclowd may, under certain circumstances and without prior notice, immediately terminate Your access to the Services. Cause for such termination shall include, but not be limited to:
(a) breaches or violations of these Terms of Service or other incorporated agreements or guidelines;
(b) requests by law enforcement or other government agencies;
(c) a request by You (self-initiated User deletions);
(d) discontinuance or material modification to the Services (or any part thereof);
(e) unexpected technical issues or problems; and
(f) extended periods of inactivity.
Termination of Your Account includes:
(a) removal of access to all offerings within the Services;
(b) deletion of Your password and all related information, files and Content associated with or inside Your Account (or any part thereof); and
(c) barring further use of the Services.
Further, You agree that all terminations for cause shall be made in Mclowd’s sole discretion and that Mclowd shall not be liable to You or any third-party for any termination of Your Account or access to the Services.
The Services may provide, or third parties may provide, links to other World Wide Web sites or resources.
Because Mclowd has no control over such sites and resources, You acknowledge and agree that Mclowd is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Mclowd shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
You acknowledge and agree that the Services and any necessary software used in connection with the Services (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to You through the Services are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorised by Mclowd, You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part.
You agree not to access the Services by any means other than through the interface that is provided by Mclowd for use in accessing the Services.
Mclowd and the Mclowd logo are trademarks and service marks, and other Mclowd logos and product and service names are trademarks of Mclowd Pty Ltd (the “Mclowd Marks”). Without Mclowd’s prior permission, You agree not to display or use in any manner, the Mclowd Marks, provided that You may be permitted to use Mclowd Marks in accordance with the Mclowd Trademark and Logo Guidelines.
COMMUNITY FORUM AND WIKI
Notwithstanding any other Section of these Terms of Service, content submitted to the Community Forum and Wiki shall be subject to the following Creative Commons Licence.
COPYRIGHT INFRINGEMENT AND DMCA POLICY
As Mclowd asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If You believe that material located on or linked to by http://mclowd.com or http://app.mclowd.com violates Your copyright You are encouraged to notify Mclowd in accordance with Mclowd’s Digital Millennium Copyright Act (“DMCA”) Policy. Mclowd will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Mclowd will terminate a User’s access to and use of the Services if, under appropriate circumstances, the User is determined to be a repeat infringer of the copyrights or other intellectual property rights of Mclowd or others.
DISCLAIMER OF WARRANTIES
You expressly agree and understand that:
a) the Services are provided on an “as is” and “as available” basis and to the extent permitted by law, Mclowd hereby disclaims all warranties and conditions with regard to the Services, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement.
b) Mclowd makes no warranty that:
i) the service will meet Your requirements;
ii) the Services will be uninterrupted, timely, secure or error-free;
iii) the results that may be obtained from the use of the Services will be accurate or reliable; and
iv) any errors in the software will be corrected.
c) any material downloaded or otherwise obtained through the use of the Services are done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of any such material.
d) no advice or information, whether oral or written, obtained by You from Mclowd or through the Services shall create any warranty not expressly stated in these Terms of Service.
LIMITATION OF LIABILITY
You expressly understand and agree that Mclowd shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of profits, goodwill, use of data or other intangible losses (even if Mclowd has been advised of the possibility of such damages) resulting from:
a) failure by Mclowd to provide continued access the Services;
b) any corruption to or loss of data;
c) errors or interruption to the Services;
d) defects, faults or viruses;
e) changes, suspension or discontinuance of the Services;
f) failure to make any changes or improvements to the Services;
g) use or results of the use of the Services or the materials made available as part of the Services which are not correct, accurate, timely, or otherwise reliable;
h) threatening, defamatory, obscene, offensive or illegal Content or conduct of any other party or any infringement of another’s rights, including intellectual property rights;
i) Content sent using and/or included in the Services by any third party; or
j) deletion of emails or messages.
EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to You.
Where the Trade Practices Act (Cth) or other legislation implies conditions or warranties or gives other rights in respect of these Terms of Service and it is not lawful or possible to exclude the same, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to these Terms of Service. In all other respects, all implied conditions, warranties and other rights are excluded. http://mclowd.com/terms-service/platform-terms-service-channel-partner/ http://mclowd.com/terms-service/platform-terms-service-channel-partner/Subject to qualifications expressly provided in the Trade Practices Act or other legislation, Mclowd’s liability for any breach of any such implied condition or warranty shall be limited to, in the case of goods supplied, as it may determine, the replacement of the goods or resupply of equivalent goods, the repair of the goods or the payment of the costs of replacing the goods or of acquiring equivalent goods and, in the case of services supplied, as it may determine, the supply of the services again or the payment of costs of having the services supplied again.
Each provision of these Terms of Service excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the expiry or termination of these Terms of Service.
Any dispute arising out of or in connection with these Terms of Service shall be governed by the laws of New South Wales, Australia and the parties irrevocably submit to the non-exclusive jurisidiction of the courts of New South Wales, Australia.
These Terms of Service constitutes the entire agreement between You and Mclowd and governs Your use of the Services, superceding any prior agreements between You and Mclowd. You also may be subject to additional terms and conditions that may apply when You use affiliate services, third-party Content or third-party software.
The failure of Mclowd to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
If any provision of these Terms of Service are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
Please report any violations of these Terms of Service to Mclowd at firstname.lastname@example.org
Version 2.2 26 August 2014