This document outlines Terms of Service offered by Main Street Trading Pty Ltd, trading as Cloakr™. Your business relationship is of the utmost importance to us.
1.1 Main Street Trading Pty Ltd (“Company”) provides its Service(s) (as defined below) to you and the company or other legal entity you represent (collectively “Customer”), subject to this Cloakr Services Agreement (“Agreement”). By accepting this Agreement or by accessing or using the Services, you acknowledge that you have read, understood, and agree to be bound by this Agreement, and you represent and warrant that you have the authority to bind the company or other legal entity you represent to this Agreement. If you do not have such authority, or if Customer does not agree to all of the terms of this Agreement, you must not accept this Agreement and may not use the Services. If Customer registers for a free trial for our Services, this Agreement will also govern that free trial. The “Service(s)” mean (a) Company’s Cloakr Cloakroom Management System and related website and technologies, and (b) any software, data, reports, materials or content (“Software”) made available in connection with any of the foregoing. Any new features added to or augmenting the Service are also subject to this Agreement.
1.2 Company may change this Agreement from time to time. If we do this, we will post the changes to this Agreement on this page and will indicate at the top of this page the date these terms were last revised. We will also notify Customer, either through the Service user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Customer’s continued use of the Services after the date any such changes become effective constitutes Customer’s acceptance of the new Agreement.
2.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Subject to the terms hereof, Company will endeavour to provide Customer with reasonable support services and implementations assistance, through electronic mail or another reasonable mechanism, in accordance with Company’s standard practice.
2.2 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Software; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorised within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party (unless expressly permitted by Company); or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on a Customer premises device, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software solely as embedded on such device only in connection with the Services during the Term.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations (including policies and laws related to spam, privacy, consumer and child protection and the like). Without limiting the foregoing, to the extent Customer collects, processes, uses or discloses any personal or other information regarding individuals in connection with the Services, Customer hereby represents and warrants that it has and will have all necessary permissions and consents to do so. Customer shall indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to access or use the Services, including, without limitation, iPads, internet access services, related equipment and the like (collectively, “Equipment”). Further, any example language or agreements offered in connection with the Services (e.g., example confidentiality agreements or terms for visitors) are provided solely as examples for informational purposes; Customer is solely responsible for ensuring that any language or agreement it deploys in connection with the Service is appropriately customised and fit for Customer’s purposes. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords and files. For every email sent in connection with the Services, Customer acknowledges and agrees that the Services may add a source identifier for the Service (e.g., a small logo, a “powered by” tag line or the like).
3.1 Customer will pay Company all applicable Services fees (as described in the Services or otherwise designated by Company from time to time) (the “Fees”). If Customer’s use of the Services exceeds the applicable service capacity (as described in the Services or otherwise designated by Company from time to time) or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Services term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the date on the relevant billing statement, in order to receive an adjustment or credit.
3.2 Prior to the commencement of paid Services, Customer shall provide Company all relevant information regarding Customer’s credit card or other payment instrument. Customer represents and warrants to Company that such information is true and that Customer is authorised to use such payment instrument. Customer will promptly update its account information with any changes (for example, a change in Customer billing address or credit card expiration date) that may occur. Customer hereby authorises Company to bill Customer’s payment instrument in advance on a periodic basis in accordance with the terms described in the Service, and Customer further agrees to pay any charges so incurred. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4.1 Subject to earlier termination as provided herein, this Agreement is for the initial Services term as specified in connection with the sign-up process for the Services, and shall be automatically renewed for additional periods of the same duration as the initial Services term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term (collectively, the “Term”).
4.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon five (5) days’ notice (or without notice in the case of nonpayment or violation of Sections 2.2 or 2.3), if the other party materially breaches any of term of this Agreement. Either party may also terminate this Agreement for any reason upon thirty (30) days’ prior written notice. Customer will pay in full for the Services up to and including the last day on which the Services are provided, and any pre-paid Fees are non-refundable (except for early termination by Company for convenience if undelivered Services were prepaid). Upon Customer’s request made within 30 days after the effective date of termination or expiration of this Agreement, Company will make Customer Data available for export or download. After that 30-day period, Company will have no obligation to maintain or provide Customer Data, and will thereafter delete or destroy all copies of Customer Data in its possession or control, unless legally prohibited. Sections 2.2, 3, 4.2 and 5-9 shall survive termination of this Agreement.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Proprietary Information”). Proprietary Information of Customer includes data and information regarding visitors to Customer’s premises that is collected and stored using the Service (“Customer Data”). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services and any Software. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without fault of the Receiving Party, (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed or obtained without use of any Proprietary Information of the Disclosing Party or (e) is required by law to be disclosed. Notwithstanding the foregoing, Company shall have the right collect and analyse data and other information relating to the use and performance of the Services and related technologies, and Company will be free to use such information to improve the Services and disclose it solely in aggregate or de-identified forms in connection with its business.
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS, REPRESENTATIVES AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (B) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF REVENUE OR PROFIT) OR FOR LOSS OR CORRUPTION OF DATA; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company shall have the right to factually list Customer as a customer of the Services on its website and marketing materials using Customer’s logo. Neither party may assign this Agreement without the other party’s consent, except to a successor to all or substantially all of such party’s assets or business. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Last updated on Aug. 13th, 2015
Main Street Trading Pty Ltd
Suite 2, 249 Chapel St
Prahran, VIC, 3181, Australia