THESE TERMS OF SERVICE, INCLUDING ANY AMENDMENTS THAT WE MAY POST FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS BELOW, STATE THE TERMS AND CONDITIONS UNDER WHICH CLOUD MONKEY PTY LTD (ACN 159 845 315) ("US" "WE") PROVIDES YOU WITH VARIOUS SERVICES.

Last Updated:  October 2017

Effective Date:  October 2017

These terms of service (“Terms of Service”) express the basis on which we offer our Monocura Limo services and products.

Monocura Limo is a web based business tool for hire car operators and booking agents including, online reservation management, financial applications, mobile applications and white label websites (collectively referred to as “the Services”).

Different levels of functionality relate to the level of Services purchased.  The principle is that users should not be required to pay for services they don’t currently need.

As used in the Terms of Service, the terms “you”, “your” or “user” all refer to the person using the Services in any way.

These Terms of Service are legally binding. Use of any functionality of the Monocura Limo Services (whether paid or during a free trial period) means you accept these Terms of Service. If you do not agree to be bound by these Terms of Service, you may not use the Services, including the Monocura Limo web site,.

The Services are not available to persons under the age of 18 or the age of legal majority in your jurisdiction, if different from 18, or to any users suspended or removed from accessing the Services by us for any reason. Additionally, you are prohibited from selling, trading, or otherwise transferring your Monocura Limo account to another party without our express written permission. If you do not qualify, you may not use the Monocura Limo Services.

These Terms of Service supplement all applicable agreements and terms and conditions between you and us.

1. Payment; Delivery Terms

We may allow purchase of the Services by credit card or debit card (“Card Services”). We may use a third-party payment processor (“Payment Processor”) to link your credit card account and/or debit card account to the Service (your “Card Account”) for use of the Card Services. The processing of payments or credits, as applicable, in connection with the Card Services will be subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer and/or debit card issuer in addition to these Terms of Service. We are not responsible for any error that occurs during any payment process, including any error by the Payment Processor. In connection with your use of the Card Services, we will obtain certain transaction details, which we will use solely in accordance with our Privacy Policy.

We agree to provide you with online access to your Monocura Limo account within three (3) business days of receipt of the Monocura Limo, Credit Card Authorisation Form and successful processing of the initial fee amount as listed on the Credit Card Authorisation Form.

2. Permitted Uses and Restrictions on Use.

Subject to these Terms of Service, we (or our subcontractors) will provide the Services that allow you to manage your online reservations, financial applications, mobile applications, services and products and customer account and financial data . In order to use the Services, you must at your own expense obtain access to the Internet, either directly or through devices that access web-based content. In addition, you must provide all equipment necessary to make such connection to the Internet, including a computer and modem, smartphone or other access device.

3. Your Registration Obligations.

In consideration of your use of the Services, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form(s) (“Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that we have reasonable grounds to suspect is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You will have sole responsibility for the accuracy and quality of all data you submit to us and for ensuring that your collection and use of your data complies with applicable laws, including those related to data privacy and transmission of personal data. You are solely responsible for any liability resulting from your handling of cardholder data. You agree that you will comply with PCI DSS anytime the Services are used to process credit cards.

5. Access, Passwords and Security

You will be responsible for the confidentiality and use of your access number(s), password(s), and account number(s). You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data including any Content (“Electronic Communications”) entered through or under your access number(s), password(s) or account number(s). We will act as though any Electronic Communications it receives under your access number(s), password(s) or account numbers(s) will have been sent by you. You agree immediately to notify us if you become aware of any loss or theft or unauthorised use of any of your access number(s), password(s) and/or account number(s).

6. Member Conduct

You agree to not use the Services to: (i) upload or otherwise transmit any Content or domain name that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm minors in any way; (iii) impersonate any person or entity, including, but not limited to, any Monocura Limo representative or host, or falsely state or otherwise misrepresent your affiliation with any person or entity; (iv) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services; (v) upload or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vi) upload or otherwise transmit any Content or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (vii) upload or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation, except in those areas of the Services that may be designated for such purpose; (viii) upload or otherwise transmit 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; (ix) interfere with or disrupt the Services or servers or networks connected to the Services; (x) violate any applicable law or regulation; (xi) incite or provide instructional information about illegal activities; or (xii) conduct raffles, contests, lotteries or sweepstakes, except in those areas of the Services that may be expressly designated for such purpose.

 

7. General Practices Regarding Use, Storage and Service Access

You acknowledge that we may establish from time to time general practices and limits concerning use of the Services, including without limitation, establishing the maximum amount of storage space you have on the Services at any time, as well as limiting the number of times (and the maximum duration for which) you may access the Services in a given period of time. You agree that we have 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. As a condition of use for this Services, you agree that, in the event of an error with your Services, a Services technician shall be permitted to access your Content as necessary to resolve the problem. You acknowledge that we reserve the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

8. Privacy and Access

Your data. We will treat any material that is uploaded by you in the course of your use of the Services (“Your Data”) as your property.  The term “Your Data” includes text, data, photos, video, audio and anything else that you upload or transmit using the Services.  You grant us a non-exclusive, worldwide, royalty-free and irrevocable licence and right to collect, use, copy, store, transmit, modify and create derivative works of Your Data for the purpose of providing the Services to you, as required for benchmarking, analysis and the enhancement of the Services and as otherwise permitted by these Terms.  You agree that we may disclose Your Data to our service providers and transmit Your Data to and from our service providers, and you agree that those service providers can also store and transmit Your Data, for purposes permitted by these Terms. 

Use of third parties.  We use third parties to host our software and to transmit and store the data (including Your Data) used to provide the Services.  Although we use protective security measures in relation to the Services, we do not make any representation or warranty that these measures will be effective at all times and you agree that your use of the Services involves use of systems, networks and facilities that are not owned, controlled, managed or operated by us, and that we are not responsible if any of Your Data is lost, corrupted, intercepted, stored or accessed across these systems, networks and facilities.

Compliance with laws.  We agree to comply with our privacy policy which forms part of these Terms.  You agree that you must comply with all applicable laws (including data protection laws) in connection with your use of the Services. You agree that you are solely responsible for considering and complying with your obligations to third parties and your obligations under all applicable laws, including notifying and obtaining the consent of third parties (where applicable), in relation to your use of the Services, and the use, transfer and disclosure of Your Data as contemplated by these Terms. By uploading Your Data, you represent and warrant to us that Your Data and its transmission and use by us and our service providers as contemplated by these Terms will not contravene any laws and that you have the necessary rights, consents and licences to make Your Data available to us to deal with as contemplated by these Terms. Nothing in these Terms restricts us from disclosing Your Data if we are legally required or compelled to do so by a court, a government authority or some other body with the legal authority to compel disclosure.

Data indemnity. You indemnify us in respect of any loss, expense, liability or damage of any nature or kind which we suffer in connection with Your Data, including any claim brought by a third party that alleges that Your Data, or your use of the Services infringes any intellectual property or other right of a third party, or contravenes any law. This indemnity includes you indemnifying for all legal expenses reasonably incurred by us, and is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion or expiration of your use of our products and services. We do not need to incur expense or make any payment before enforcing this right of indemnity.

Backups and retention.  Although we use backup procedures in relation to our Services, we do not make any representation or warranty that these measures will be effective at all times. We recommend that you keep backups of any material that you upload.  You acknowledge and agree that we have no obligation to retain Your Data following the end of the Term and that Your Data may be irretrievably deleted by us any time after sixty (60) days following the expiry or termination of your use of our products and services.

Feedback and other data.  If you provide us with any suggestions, questions, requests, comments or ideas in relation to the Services or Professional Services (“Customer Feedback”), you agree that we may use, exploit, reproduce and disclose that Customer Feedback (including any Intellectual Property Rights or other proprietary rights which may exist in that Customer Feedback) in any way whatsoever, without any restriction or any obligation to you, and without any obligation to pay you any royalty, fee or any other amount. If you choose to give us Customer Feedback, it will not be Your Data or your confidential information for the purposes of these Terms of Service.  We may compile statistical, usage and performance information related to the provision of the Services including the general characteristics of the material uploaded by you in the course of your use of the Services.  We may use that information and material to improve our products and services, as reasonably required for benchmarking and analysis, to create new products and services, and for marketing purposes.  We will only use anonymised information and material that does not identify you for this purpose.

9. Modifications to the Service or Agreements

Modifications to the Services. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) at reasonable notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. We may specify from time to time the version(s) of related products and/or additional services required in order to use the Services (e.g. supported browser versions).

10. Modifications to the Terms of Service

We reserve the right to make changes to these Terms of Service and related policies and agreements at any time. You agree that we may modify the Terms of Service if necessary to comply with any other agreements that we is currently bound by or will be bound by in the future, and/or with applicable law, as well as to adjust to changing business circumstances. If we make a material modification to these Terms of Service, it will notify you by the posting on the home page of its business management application the updated Terms of Service and you agree that such notification shall be sufficient notification of such changes. Your continued use of any of the Services shall constitute your acceptance of the Terms of Service with the new modifications. If you do not agree to any of such changes, you may terminate the Terms of Service by immediately ceasing all access and use of the Services. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to the Terms of Service.

11. Fees
You agree to pay the then-current non-refundable fees associated with the level of Services you choose. Additional fees may apply for: (i) optional add-on features to the Services; (ii) in the event you elect to transfer from one level of the Services to another; or (iii) in the event you exceed your Service level allocations. See the pricing page for the current fees and Service levels. Unless otherwise expressly provided in a separate agreement with us, when you subscribe and provide payment information using the Card Services your Card Account will be debited and will automatically be debited monthly or annually depending upon the payment option you choose at the then-current rate to maintain the service unless you notify us by electronic mail to infor@cloudmonkey.com.au to cancel the Services thirty (30) days prior to the beginning of the next renewal period. We reserve the right to modify its fees with or without notice.

If you believe a payment has been processed in error, you must provide written notice to us within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by us within such thirty (30) day period, the payment will be deemed final.

Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, Goods and Services Tax, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If we are legally required to pay or collect any Taxes on your behalf, we will invoice you and you will pay the invoiced amount. For clarity, we will be solely responsible for taxes assessed on us based on our income.

12. Termination

You acknowledge and agree that we may suspend or terminate your account and/or deny you access to, use of, or submission of Content for, all or part of the Services, without prior notice, if you engage in any conduct that we believe, in our sole discretion: (i) violates any term or provision of the Terms of Service, (ii) violates the rights of us or third parties, (iii) or is otherwise inappropriate for continued access and use of the Services. We reserve the right to terminate inactive membership accounts. In addition, we reserve the right to terminate or suspend your account and terminate all or part of your access to the Services for any reason or no reason upon thirty (30) days prior notice to you. Unless otherwise expressly agreed in writing, you agree that upon termination, either by you or us, we may delete all Content and information related to your account and may bar your access to your account and the Services including, but not limited to, access to any of your Content entered into or used in connection with the Services. Further, you agree that we shall not be liable to you or any third-party for any termination of your access to the Services. You agree to defend, indemnify and hold us harmless from and against any and all claims, losses, liability costs and expenses (including, but not limited to, legal fees) arising from your violation of the Terms of Service, state or federal laws or regulations, or any third party’s rights, including but not limited to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of Services.

13. Links

The Services may provide links to other Internet sites or resources. You acknowledge and agree that we are 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 we 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.

14. Electronic Communication

When you use the Monocura Limo Services or send emails to info@cloudmonkey.com.au, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Monocura Limo web site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

15. Our  Proprietary Rights

You acknowledge and agree that the Services contains proprietary and confidential information that is protected by applicable intellectual property and other laws. The trademarks, logos and service marks (“Marks”) displayed through the Services are the property of us and other parties. Users are prohibited from using any Marks for any purpose including, but not limited to use as metatags on other pages or sites on the Internet without the written permission of us or such third party which may own the Marks. All information and Content available on or through the Services, including, without limitation, any software programs and/or Monocura Limo Content is protected by copyrights, trademarks, trade secrets, patents or other proprietary rights and is the property of us. You agree to comply with all intellectual property laws and you shall not encumber any interest in, or assert any rights to, the Monocura Limo Content or other intellectual property. Unless otherwise expressly agreed to by us in writing, you are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Monocura Limo services, products and Content available on or through the Services for commercial or public purposes.

You hereby grant to us and our affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you relating to the Services or our business.

16. No Resale of the Services

You agree not to copy, sell, resell, rent or sublicense (including offering the Services to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Services, use of the Services, or access to the Services. You agree not to access the Services by any means other than through the interface that is provided by us for use in accessing the Services.

17. Disclaimer of Warranties

You expressly understand and agree that to the fullest extent permitted under applicable law:

Your use of the services is at your sole risk. The services and any content or add-on features through the services are provided on an “as is” and “as available” basis. Cloud monkey and its suppliers expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

Cloud monkey and its suppliers make no warranty that the services and any content or add-on features through the services (i) will meet your requirements or result in revenues or profits, (ii) will be uninterrupted, timely, secure, or error-free, (iii) the data obtained from the Services will be accurate and reliable and (iv) will provide the quality of any services, products, information, or other material purchased or obtained by you through the services to meet your expectations. Cloud monkey and its suppliers make no representations or warranties of any kind whatsoever, express or implied, in connection with the terms of service or the services, including but not limited to warranties of merchantability, fitness for a particular purpose and non-infringement, unless such representations and warranties are not legally excludable. Cloud monkey expressly disclaims any representations or warranties that your use of the services will satisfy any statutory or regulatory obligations, or will assist with, guarantee or otherwise ensure compliance with any applicable laws or regulations. You are solely responsible for ensuring that your use of this services, related services or content is in accordance with applicable law.

Any content or material transferred from, downloaded or otherwise obtained through the use of the services or add-on features through the services are done at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data and/or content that results from the transfer or download of any such material.

We expressly disclaims any and all liability and will not be responsible for any damages or loss caused, or alleged to be caused, by the transmission of cardholder data prior to its encryption and receipt by server(s) owned or controlled by cloud monkey. The excluded damages will include, without limitation, damages resulting from fraud, embezzlement, theft, identity theft, or invasion of privacy.

No advice or information, whether oral or written, obtained by you from cloud monkey or through or from the services or add-on features through the services shall create any warranty not expressly stated in the terms of service.

18. Limitation of Liability

To the fullest extent permitted under applicable law:

(i) you expressly understand and agree that us and our suppliers 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, content or other intangible losses (even if we has been advised of the possibility of such damages), resulting from:

(a) the use or the inability to use the services, content and/or any information;

(b) the cost of procurement of substitute goods and services resulting from any goods, content, information or services purchased or obtained or messages received or transactions entered into through or from the services;

(c) unauthorised access to or alteration of your transmissions or content;

(d) statements or conduct of any third party on the services; or

(e) any other matter relating to the services,

(ii) you also agree that we will not be liable for any (a) interruption of business, (b) access delays or access interruptions to this site or the web site(s) you access through the services; (c) content non-delivery, mis-delivery, corruption, destruction or other modification; (d) events beyond our reasonable control; (iii) in no event shall our maximum aggregate liability exceed the total amount paid by you to us for the services, but in no event greater than three hundred dollars ($300.00).

 

19. General

1. Unless otherwise expressly agreed in writing, the Terms of Service constitutes the entire agreement between you and us and governs your use of the Services, superseding any prior agreements between you and us (including, but not limited to, any prior versions of the Terms of Service) with respect to its subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or our other services, third-party content or third-party software.
2. These Terms of Service and your relationship with us shall be governed by the laws of New South Wales. You and us agree to submit to the exclusive jurisdiction of the courts of NSW to resolve any legal matter arising from these Terms of Service. Notwithstanding this, You agree that we shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. The prevailing party in any such litigation shall be awarded reasonable legal fees and other costs.
3. The failure of us to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.
4. You agree that any claim or cause of action arising out of or related to use of the Services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
5. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.
6. The Terms of Service will inure to the benefit of us and our successors and assigns.
7. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

20. Survival

All representations, warranties, Sections 12, 18, 19, 20, 21 and 22 in the Terms of Service shall survive the termination or expiration of the Terms of Service.

21. Contact

You may contact us at the following address:

info@cloudmonkey.com.au; or

Suite 3.14, 32-38 Delhi Road North Ryde NSW 2113.