“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 a services marketplace where Members (Clients and Contractors) can co-ordinate the provision of online work, including selection, project delivery and payment.
If agreement is reached (as between a Client and Contractor) then a binding agreement is formed directly between the Client and Contractor (the Services Agreement) as described in Section 9.
Mclowd collects payment from Clients and makes payments to Contractors as a limited agent of each respectively and is a nominated third party beneficiary of the Services Agreement, but is otherwise not a party to the Services Agreement.
USE SUBJECT TO THESE TERMS OF SERVICE
Access to the website http://www.mclowd.com; http://marketplace.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 19.
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 agree to provide true, accurate, current and complete information about You as prompted by the sign up process and in creating Your profile (Profile). You must also maintain and promptly update Your Profile to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or Mclowd has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Mclowd has the right to suspend or terminate Your use of the Services (or any portion thereof).
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 must not register more than one Client Account and one Contractor Account without the written consent of Mclowd, which shall not be unreasonably withheld.
RELATIONSHIP WITH MCLOWD
The Parties acknowledge and agree that Mclowd is not a party to any dealing between a Client and Contractor, including selection, service delivery and payment, provided that Mclowd shall be a limited agent for the purposes of collecting payment from the Client and making payment to the Contractor.
For the avoidance of doubt Mclowd makes no representation or warranty in relation to the quality, safety or legality of the services offered in the Marketplace, the ability of Clients to pay for Contractor Services or that a Services Agreement will be completed in accordance with its terms.
Client and Contractor acknowledge that goodwill in the Marketplace is dependent on the performance of their obligations under the Services Agreement and hereby name Mclowd as a third party beneficiary of each Services Agreement for the purposes of enforcing the obligations owed to Mclowd under the Services Agreement.
The Client engages the Contractor to perform the relevant services (Contractor Services). The Contractor agrees to perform the Contractor Services in accordance with this Section 9 in return for payment of the relevant fees (Service Fees).
The Contractor shall in its sole discretion determine how the Contractor Services are to be performed, including without limitation using the services of third party contractors in the performance of the Contractor Services (in which case such third parties shall be the sole responsibility of the Contractor).
Nature of Relationship
The Contractor is engaged by the Client as an independent contractor. A Services Agreement does not create a relationship between the Client and Contractor of employer and employee, principal and agent, partnership or joint venture.
Subject to acceptance of the relevant work (Work Product) by the Client, the Client shall make payment for the hours worked (under an Hourly-Rate Task) or the approved project value (for a Fixed Price Task).
Payment shall be made to Mclowd and Client shall have no further obligation to the Contractor. In relation to Hourly Rate Tasks the Client will be billed on a weekly basis (7:00am AEST Monday of each week).
Term and Termination
The Services Agreement commences on the date agreed between the parties.
For Hourly Rate Tasks either party may terminate the Services Agreement at any time and without cause, provided that the Client must pay the Contractor for any hours worked up until termination.
For Fixed Price Tasks the Client may terminate at any time, but may not recover any payments already made. The Contractor may also terminate in the event that payment has not been received in accordance with an agreed payment schedule.
Subject to payment of the Service Fees the Contractor acknowledges and agrees that the Client shall be the exclusive owner of all Intellectual Property Rights in Work Product arising from the Contractor Services.
Contractor shall ensure that the Work Product does not include any third party intellectual property.
The Services Agreement shall also be governed by Sections 18 (Confidentiality) and 27 (General Provisions).
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.
You agree not to circumvent the Services by making or accepting payments outside the payment methods and processes provided as part of the Services.
You acknowledge and agree that failure to comply with this Section 11 can result in suspension or termination of your Account and any related access to the Marketplace and Platform.
LIMITED LICENCE TO USE CONTENT
Mclowd does not claim ownership of Content You submit or make available for inclusion on the Services.
However, with respect to Content You submit or make available for inclusion on areas of the Services accessible by the public or other registered Users (other than the Community Forum and Wiki), You grant Mclowd a world-wide, royalty free and non-exclusive licence to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Services solely for the purposes of providing and promoting the Services to which such Content was submitted or made available.
This license exists only for as long as You elect to continue to include such Content on the Services and will terminate at the time You remove or Mclowd removes such Content from the Services.
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.
The Mclowd Platform (http://app.mclowd.com) is a free platform for supporting Self Managed Super Fund (“SMSF”) accounting. Access to the Platform is subject to the Platform Terms of Service: which are incorporated herein by reference.
For the avoidance of doubt a Client who is in subsisting breach of their obligations under these Terms of Service may have their access to the Platform suspended or terminated.
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, 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:
(a) Content You submit, post, transmit or make available through the Services,
(b) Your use of the Services, including without limitation Your breach of these Terms of Service
(c) The provision of any Contractor Services, or
(d) Your violation of any rights of another party.
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 SERVICES
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.
“Confidential Information” means any information which has been designated as confidential by a party in writing or that ought to be considered as confidential including information which relates to the business affairs, properties, assets, trading practices, services, developments, trade secrets, intellectual property rights, know-how, personnel, customers and suppliers of a party.
(a) shall treat all Confidential Information belonging to the other party as confidential and safeguard it accordingly; and
(b) shall not disclose any Confidential Information belonging to the other party to any other person without the prior written consent of the other party, except to such persons and to such extent as may be necessary for the performance of these Terms of Service or except where disclosure is otherwise expressly permitted by the provisions of these Terms of Service.
The provisions of this Section 18 shall not apply to any Confidential Information received by one party from the other:
(a) which is or becomes public knowledge (otherwise than by breach of this Section);
(b) which was in the possession of the receiving party, without restriction as to its disclosure, before receiving it from the disclosing party;
(c) which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(d) is independently developed without access to the Confidential Information.
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.
The Services are conducted in US Dollars and Mclowd shall not be responsible for currency fluctuations that occur during payments processing to a currency other than US Dollars, or costs associated with currency exchange.
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://www.mclowd.com or http://marketplace.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 Services 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 Services 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://www.mclowd.com/terms-service/marketplace-terms-service/ http://www.mclowd.com/terms-service/marketplace-terms-service/ http://www.mclowd.com/terms-service/marketplace-terms-service/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.
You may not assign or otherwise transfer Your rights under these Terms of Service without the prior written consent of Mclowd.
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 1.3 14 October 2017