Terms & Conditions

These terms & conditions are in additional to the normal trading terms and conditions of CLOUD ZEN. By accessing any Websites of CLOUD ZEN PTY LTD (collectively “CLOUD ZEN” or "CLOUD ZEN") or otherwise indicating acceptance as set forth below, you are agreeing to the following terms and conditions (as modified from time to time), and each time that you access the CLOUD ZEN Website you re-assert your agreement. If you do not agree with these terms and conditions, then you may not access or use the www.cloudzen.com.au or any other CLOUD ZEN Website.

1. Password
   
2. In order to access certain CLOUD ZEN e-Commerce Websites and Portals, you must present a valid password and user ID. Your password is your sole responsibility, and you must take all necessary actions to safeguard the security of your password and its use in accessing CLOUD ZEN Website and ordering product via CLOUD ZEN. You agree not to challenge the validity or enforceability of any order made via CLOUD ZEN with your password. You must not disclose your password to any person who is not authorised to use the password on your behalf. You will be solely responsible for all unauthorised use of your password by your employees or third parties, except where caused solely and directly by CLOUD ZEN negligence. CLOUD ZEN highly recommends that you change your password periodically, and that you change your password immediately when you have reason to believe that your password security has been compromised.
   
3. Terms and Conditions of Sale
   
4. All sales of products and finished goods offered and supplied by CLOUD ZEN Pty Ltd (‘CLOUD ZEN’) to its Customer (“Customer”) for resale (“Products”) shall be pursuant to the standard terms and conditions of CLOUD ZEN. Any conflicting terms in your purchase order or elsewhere are without effect unless signed by the applicable party(ies). All Customer purchases from CLOUD ZEN are deemed to be purchases pursuant to a written agreement.
   
   1. ACCEPTANCE: Customer's acceptance of these Terms and Conditions shall be indicated by any of the following, whichever first occurs: (a) Customer's written acknowledgement hereof, (b) Customer's submission of an order to CLOUD ZEN, regardless of whether the Product(s) ordered is ever delivered or if the purchase order is completely or partially fulfilled, rejected, modified or cancelled; (c) Customer’s receipt of any part of the items specifed for delivery in any purchase order submitted to CLOUD ZEN, (c) Customer’s application for credit submitted to CLOUD ZEN, (d) accessing any CLOUD ZEN e-Commerce Websites, or (e) any other act or expression of acceptance by Customer.  Customer's acceptance is expressly limited to the Terms and Conditions in their entirety without addition, modification or exception and any term, condition, or proposal hereafter submitted by Customer (whether oral or in writing), which is inconsistent with or in addition to the Terms and Conditions set forth hereon is objected to and is hereby rejected by CLOUD ZEN. CLOUD ZEN's silence or failure to respond to any such subsequent term, condition or proposal shall not be deemed to be CLOUD ZEN's acceptance or approval thereof.
      
   2. Customer shall promptly notify CLOUD ZEN, no later than 24 hours from delivery date, of any claimed shortages or rejection as to any delivery, with the exception of deliveries that reveal external shipping damage, which, in some instances, must be refused immediately upon delivery by the carrier. Such notice shall be in writing and shall be reasonably detailed stating the grounds for any such rejection. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. CLOUD ZEN shall not be liable for any shipment delays that affect CLOUD ZEN or any of CLOUD ZEN's suppliers, including but not limited to delays caused by unavailability or shortages of Products from CLOUD ZEN's suppliers, natural disasters, acts of war or terrorism, acts or omissions of Customer, fire, strike, riot, or governmental interference, unavailability or shortage of materials, labour, fuel or power through normal commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures.
      
5. Warranty
   
6. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT AND FOR ALL OTHER OBLIGATIONS OR LIABILITIES ON CLOUD ZEN  PART.
   
7. CLOUD ZEN NEITHER ASSUMES, NOR AUTHORISES ANY OTHER PERSON TO ASSUME FOR CLOUD ZEN AUSTRALIA, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF PRODUCTS TO Customer.  THIS WARRANTY SHALL NOT APPLY TO ANY UNITS OF PRODUCTS WHICH SHALL HAVE BEEN REPAIRED OR ALTERED OTHER THAN BY CLOUD ZEN OR WHICH SHALL HAVE BEEN SUBJECT TO MISUSE, NEGLIGENCE, OR ACCIDENT.  CLOUD ZEN SHALL NOT BE LIABLE FOR PERSONAL INJURY RESULTING DIRECTLY OR INDIRECTLY FROM THE DESIGN, MATERIAL, OPERATION OR INSTALLATION OF ANY UNITS OF PRODUCTS.
   
8. Customer further acknowledges that CLOUD ZEN will have no responsibility for any claims for infringement of intellectual property rights pertaining to distribution, sale or use of the Products.  CLOUD ZEN SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY OR HOLD HARMLESS Customer FROM AND AGAINST ANY OR ALL DAMAGES AND COSTS INCURRED BY Customer ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS.
   
9. Contrary, Liability & Jurisdiction
   
10. These terms and conditions and all other contracts entered into between CLOUD ZEN and the Customer referred to in these terms and conditions are subject to the laws in force in the State of Victoria, Australia, and the parties submit to the jurisdiction of the courts of Victoria, Australia.
    
11. Limitation of Liability
    
12. CLOUD ZEN SHALL NOT BE LIABLE TO Customer, Customer’s CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY Customer, Customer’s CUSTOMER, OR ANY OTHER PARTY, OF PRODUCTS DELIVERED TO Customer, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS OF CLOUD ZEN.  IN NO EVENT SHALL CLOUD ZEN BE LIABLE TO Customer OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY CLOUD ZEN AUSTRALIA, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY Customer HEREUNDER.  IN NO EVENT SHALL CLOUD ZEN BE LIABLE TO Customer OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH CLOUD ZEN’S BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION, SERVICING, USE OF PERFORMANCE OF ANY PRODUCTS OR INFORMATION CLOUD ZEN SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES.
    
13. Confidentiality
    
14. The receiving party shall protect the confidentiality and secrecy of the disclosing party’s Confidential Information and shall prevent any improper disclosure or use thereof by its employees, agents, contractors or consultants, in the same manner and with the same degree of care (but in no event less than a reasonable degree of care) as it uses in protecting its own information of a confidential nature for a period of three (3) years from the date of such disclosure.  Each party agrees to provide notice to the other immediately after learning of or having reason to suspect a breach of any of the restrictions.  Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information if and to the extent that such disclosure is required by applicable law, provided that the receiving party uses reasonable efforts to limit the disclosure and provides the disclosing party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
    
    1. Each party retains for itself all proprietary rights it possesses in and to all of its own Confidential Information.  Accordingly, Confidential Information which the disclosing party may furnish to the receiving party shall be in the receiving party’s possession pursuant only to a restrictive, non-transferable, non-exclusive license under which the receiving party may use such Confidential Information under the terms of this Agreement, solely for the purposes of satisfying its obligations hereunder.  Each party understands that the party receiving Confidential Information may now or in the future be developing proprietary information internally, or receiving proprietary information from third parties in confidence that may be similar to disclosed Confidential Information.  Nothing in this Agreement shall be construed as a representation or inference that the receiving party will not develop products, for itself or others, that compete with the products, processes, systems or methods contemplated by disclosed Confidential Information.
       
    2. Each party acknowledges that any material violation of the rights and obligations provided may result in immediate and irreparable injury to the other party, and hereby agrees that the aggrieved party shall be entitled to immediate temporary, preliminary, and permanent injunctive relief against any such continued violations upon adequate proof, as required by applicable law.  Notwithstanding each party hereby submits itself to the personal jurisdiction of the courts of competent subject matter jurisdiction for purposes of entry of such injunctive relief.
       
15. Electronic Communications Disclaimer
    
16. CLOUD ZEN is not liable for any failure of the CLOUD ZEN service, EDI service, or any other form of electronic communication (collectively, "Electronic Communication") to transmit, receive, store or handle documents or perform related activities.  CLOUD ZEN does not represent or warrant that the information accessible via the CLOUD ZEN Website is accurate, complete or current.  Price and availability information is subject to change without notice.
    
    1. Customers must properly use security procedures, which are reasonably sufficient to ensure that all electronic transmissions of documents to CLOUD ZEN are authorised and shall be responsible for any such unauthorised transmissions. Any order properly transmitted in accordance with these terms and conditions is considered to be "in writing"; and any order containing a code is deemed (a) to have been "signed" and (b) to constitute an "original" when printed from electronic files or records established and maintained in the normal course of business. Customer and CLOUD ZEN agree not to contest the validity or enforceability of orders as to whether certain agreements are to be in writing or signed.
       
    2. Independent Contractor:  CLOUD ZEN and Customer are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties.
       
17. Force Majeure
    
18. Neither party shall be liable to the other for any delay in performance or failure to perform, in whole or in part, due to labour dispute, strike, war or act of war (whether an actual declaration is made or not), insurrection, riot, civil commotion, act of public enemy, accident, fire, flood, earthquake, or other act of God, act of any governmental authority, judicial action, computer virus or worm, or similar causes beyond the reasonable control of such party.  If any event of force majeure occurs, the party affected by such event shall promptly notify the other party of such event and take all reasonable actions to avoid the effect of such event.
    
19. Disputes
    
20. Both parties agree to negotiate in good faith the settlement of any disputes that may arise under this Agreement.  If necessary, such disputes shall be escalated to appropriate senior management of each party.  In the event that such good faith settlements fail, excluding any and all disputes, any and all other disputes and controversies of every kind and nature between the parties arising out of or in connection with the existence, construction, validity, interpretation, or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination of this Agreement. This Agreement will be governed by the laws of Queensland, Australia.  Should there be any controversy or dispute arising from or related to the Agreement, the Parties agree to resort to the arbitration in Queensland, Australia.  In the event of any litigation arising out of this Agreement or its enforcement by either party, the prevailing party shall be entitled to recover as part of any judgement, reasonable attorneys’ fees and court costs.
    
21. Notice
    
22. All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt.
    
23. Disclaimer
    
24. USE OF THE CLOUD ZEN E-COMMERCE WEBSITE IS ON AN "AS IS" BASIS AND CLOUD ZEN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE WEBSITE OR RELATED PRODUCTS. CLOUD ZEN DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, CLOUD ZEN DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE CLOUD ZEN WEBSITE IS ACCURATE, COMPLETE OR CURRENT. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE.
    
25. Limitation on Use
    
26. Customer hereby acknowledges that Products are not intended for use in life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage.  CLOUD ZEN hereby disclaims any liability or responsibility for risk of loss, expenses, cost, liability, litigation and/or potential adverse verdict or judgment in relation to any such use of the products.
    
27. Limited License
    
28. The information provided to you via certain CLOUD ZEN e-Commerce Websites is licensed to you by CLOUD ZEN for your use only in the ordinary course of your business for your review, selection and purchase of products from CLOUD ZEN. This license is non-exclusive, non-transferable, and may be terminated by CLOUD ZEN with or without cause at any time.
    
29. Limitation of Liability
    
30. Except as specifically stated herein, neither CLOUD ZEN nor any of its directors, employees or other representatives will be liable for damages arising out of or in connection with your use of any CLOUD ZEN Website. This is a comprehensive limitation of liability that applies to all damages of any kind, including (without limitation) compensatory, direct, indirect or consequential damages, loss of data, income or profit, loss of or damage to property and claims of third parties.
    
31. IN NO EVENT SHALL CLOUD ZEN BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER RESULTING FROM OR RELATED TO Customer’s USE OF ANY CLOUD ZEN  WEBSITE OR CLOUD ZEN  PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCT(S) SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, PERSONAL INJURY, THE NEGLIGENCE OF CLOUD ZEN OR OTHERWISE.  CLOUD ZEN LIABILITY SHALL BE LIMITED SOLELY TO THE REPAIR, REPLACEMENT OR CREDIT OF THE PRODUCT(S), AT CLOUD ZEN OPTION.
    
32. Indemnity
    
33. You agree to defend, indemnify and hold CLOUD ZEN and its affiliates, and their respective directors, officers, employees and agents, harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys' fees, arising from or in any way relating to your use of any CLOUD ZEN Websites or any Product acquired from CLOUD ZEN AUSTRALIA PTY LTD.
    
34. Modification
    
35. These Terms and Conditions, along with (a) the terms and conditions on any CLOUD ZEN invoice, (b) the terms and conditions of the CLOUD ZEN credit application, and (c) the terms and conditions of any other agreement signed by authorized representatives of both Customer and CLOUD ZEN, sets forth the entire agreement and understanding of the parties relating to the subject matter herein.  In the event of a conflict between these various terms and conditions, they will take effect in the following order of precedence: (1) any signed agreement between the parties; (2) the terms and conditions on any CLOUD ZEN Invoice, (3) these Terms and Conditions, and (4) the terms and conditions in Customer’s credit application to CLOUD ZEN.  Any terms and conditions on Customer’s purchase order or any other document not signed by CLOUD ZEN shall have no force and effect.
    
36. Notwithstanding the foregoing, if Customer and CLOUD ZEN have executed an agreement that specifically supersedes and replaces or modifies any or all of the Terms and Conditions, the terms of such Agreement shall control. No additional or different terms of conditions, whether material or immaterial, shall become a part of these Terms and Conditions unless expressly accepted in writing by an authorised officer of CLOUD ZEN. Any waiver by CLOUD ZEN of one or more of these Terms and Conditions or any defaults hereunder shall not constitute a waiver of the remaining Terms and Conditions or any future defaults hereunder. It is the intention of the parties that these Terms and Conditions shall be enforceable to the fullest possible extent, regardless of any partial invalidity or unenforceability, and that no failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. The rights and obligations of Customer under the Terms and Conditions may not be assigned by Customer without the prior written consent of CLOUD ZEN (which shall not be unreasonably withheld).
    
37. CLOUD ZEN may modify the information and functionality of any CLOUD ZEN Website at any time.  CLOUD ZEN reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms and Conditions at any time, and you agree to be bound by such modifications, alterations or updates.  Any modifications, alterations or updates to these Terms and Conditions will be available to you on the CLOUD ZEN Website, and you agree to regularly check the CLOUD ZEN Website for new versions of these Terms and Conditions.
    
38. Governing Law
    
39. This Agreement will be governed by the laws of the State of Queensland, Australia, excluding the application of its conflicts of law rules. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.  Customer agrees to pay court costs and reasonable legal fees incurred in the collection of any unpaid balances whether or not suit is filed.
    
40. BY ACCESSING ANY CLOUD ZEN WEBSITES, YOU ACCEPT ALL THE TERMS AND CONDITIONS WITHIN THIS AGREEMENT (CLOUD ZEN: TERMS AND CONDITIONS)
    

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