Terms and Conditions
Last Updated – 26th September 2023
1.1. “Cloudfinity”, “we”, “us”, or “our” refers to Cloudfinity Pty Ltd with ABN 19 671 632 438 and its employees or agents.
1.2. Client refers to any entity that signs up a product or service with Cloudfinity. A client of Cloudfinity is also referred to as “you” and “your”.
1.3. These terms and conditions (“Agreement”) govern your use of our cloud services, including virtual private servers (VPS), virtual private cloud (VPC), dedicated servers, colocation, IP transit, and cloud connectivity (“Services”). By using our Services, you agree to be bound by these terms and conditions.
2. Service Description
2.1. We provide cloud services, including VPS, VPC, colocation, dedicated servers, IP transit and cloud connectivity. The specific features and limitations of each service are described on our website. We reserve the right to modify, upgrade, or discontinue any of our services at any time without notice.
3. Payment and Billing
3.1. You will be billed for our Services on a monthly basis in advance.
3.2. Payment must be made by credit card, and a surcharge may be applied.
3.3. We will not provide refunds for any unused portion of Services, and you may not receive any credits or refunds for any interruption in service, including scheduled maintenance.
4. Account Ownership
4.1. The person who registers for an account with Cloudfinity is considered the account owner. The account owner has full responsibility for maintaining the confidentiality and security of their account, including any passwords or access credentials associated with the account.
4.2. The account owner is responsible for all activities that occur under their account, and any authorised users of the account. The account owner may not transfer or assign their account to any other person or entity without the prior written consent of Cloudfinity.
4.3. In the event of a dispute over ownership of an account, Cloudfinityreserves the right to determine the ownership of the account at our sole discretion.
5. Customer Obligations
5.1. You are responsible for your use of our Services and for any content or activity that occurs under your account. You agree not to use our Services for any illegal or unauthorised purpose, and you agree to comply with all applicable laws and regulations. You may not use our Services to transmit any material that is defamatory, obscene, offensive, or otherwise violates any applicable laws or regulations. You are responsible for maintaining the security of your account, including your password and any access credentials.
5.2. By using our Services, you agree to comply with our Acceptable Use Policy, which is incorporated into and made a part of this Agreement. The Acceptable Use Policy can be found at https://www.cloudfinity.com.au/acceptable-use-policy/. Failure to comply with the Acceptable Use Policy may result in termination of your Services.
6. Intellectual Property
6.1. We retain all rights, title, and interest in and to our Services, including any software, trademarks, copyrights, or other intellectual property rights. You may not copy, modify, distribute, or create derivative works based on our Services.
7. Warranties and Disclaimers
7.1. We provide our Services “as is” and without any warranties or guarantees of any kind, whether express or implied.
7.2. We do not warrant that our Services will be uninterrupted or error-free, and we disclaim all liability for any loss or damage caused by any errors, omissions, or interruptions in our Services.
8. Microsoft Licensing (VPS and VPC)
8.1. Where a Windows Virtual Private Server is purchased, we provide a Microsoft Windows license as part of the service. This license is provided under Microsoft’s service provider licensing agreement (SPLA) program.
8.2. Where a Virtual Private Cloud is purchased, and Microsoft Windows is installed into that Virtual Private Cloud, you must purchase a Windows Data Centre license from us. This license is provided under Microsoft’s service provider licensing agreement (SPLA) program.
8.3. If you hold Microsoft licenses with software assurance, or subscription licenses, you may bring your own licenses under Microsoft’s flexible virtualisation benefits program.
8.4. Where flexible virtualisation benefits do not apply to you, you are required to purchase any necessary Microsoft licenses from Cloudfinity, and the use of bring your own (BYO) licenses is prohibited. This is a mandatory requirement under Microsoft’s Service Provider Licensing Agreement (SPLA) program.
8.5. You acknowledge that Microsoft may alter the terms of their licensing agreement at any time, and you must immediately comply with any altered terms.
9. Microsoft Licensing (Dedicated Servers)
9.1. Where a Dedicated Server is purchased and you intend to use a Microsoft product, you must bring your own suitable Microsoft license, and you must ensure that you comply with the terms of that license.
9.2. Cloudfinity does not provide Microsoft licenses for dedicated servers.
10. Software Licensing (excluding Microsoft Licensing)
10.1. Cloudfinity is not responsible for ensuring that you have the appropriate licenses for any software installed on your virtual private servers, virtual private cloud, or dedicated servers.
11. Data Backups
11.1. If you purchase our VPS backup service, you must first enable a backup job in our portal before backups are taken, and we do not guarantee the availability or completeness of these backups, nor do we guarantee that they are free from errors or corruption.
11.2. It is your responsibility to ensure that all necessary backups are taken, and to test these backups regularly to ensure they are functional and complete.
11.3. Cloudfinity will not be liable for any loss of data, corruption of data, or any other damages arising from the failure of backups or restoration of data from backups, even if Cloudfinity has been notified of the possibility of such damages.
11.4. Cloudfinity strongly recommends that you implement your own backup procedures, and that you periodically test your backups to ensure that they are functional and complete.
12. Data Retention
12.1. You acknowledge that Cloudfinity will retain a particular set of your telecommunications data for at least 2 years, under our obligations with the Telecommunications (Interception and Access) Act 1979. The data that we are required to retain can be found on the Australian Government’s Department of Home Affairs website.
12.2. You acknowledge that we will comply with any changes to the Telecommunications (Interception and Access) Act 1979 as required by the Australian Government without notice to you.
13. Law Enforcement Requests
13.1. Cloudfinity may disclose your information or data when we believe in good faith that such disclosure is necessary to comply with legal processes, to respond to any claims, or to protect the safety or rights of our company, our customers, or the public. We reserve the right to cooperate with law enforcement agencies in the investigation of any unlawful activities or activities that may violate this Agreement.
14. Limitations of Liability
14.1. We will not be liable for any indirect, special, consequential, or incidental damages arising out of or in connection with this Agreement or our Services, including any loss of data or profits. Our total liability for any direct damages arising out of or in connection with this Agreement or our Services will be limited to the amount you paid for our Services in the previous month.
15.1. You agree to indemnify, defend, and hold harmless Cloudfinity Pty Ltd and its officers, directors, employees, agents, and affiliates from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable legal fees) arising out of or in connection with the use of any product or service we provide.
16.1. You may terminate your Services at any time by providing us with notice.
16.2. We reserve the right to terminate your Services at any time if you violate this Agreement or if we determine that your use of our Services poses a risk to our network or other customers. Upon termination, your access to our Services will be immediately suspended.
17. Governing Law and Dispute Resolution
17.1. This Agreement will be governed by and construed in accordance with the laws of Western Australia. Any dispute arising out of or in connection with this Agreement will be resolved through binding arbitration in accordance with the rules of the Courts of that state.
18.1. We reserve the right to modify this Agreement at any time without notice. Your continued use of our Services after any such modification constitutes your acceptance of the modified terms.
19. Entire Agreement
19.1. This Agreement constitutes the entire agreement between you and us and supersedes all prior or contemporaneous agreements, representations, warranties, and understandings, whether oral or written.