I-Whiz Cloud Services
Cloud Services Agreement
READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE I-WHIZ CLOUD SERVICES. BY USING THE I-WHIZ CLOUD SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCESS AND USE THE I-WHIZ CLOUD SERVICES.
This Cloud Service Agreement (Service Agreement) is entered into between I-Whiz Pty Ltd ACN 622 236 846 (I-Whiz) and User, upon registration and is effective as of the date User starts to use the I-Whiz Cloud Services (excluding trial or any promotional offer period), whichever comes first (the Effective Date).
I-Whiz and User are collectively referred to as the “Parties”.
Individually as (I-Whiz, we, our) hereinafter and (User, you, your) hereinafter respectively.
If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity.
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.
- “Affiliate” means an entity that controls, is controlled by, or is under common control with User, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.
- “I-Whiz Cloud Services” means the online services operated by I-Whiz that is powered by proprietary I-Whiz technology which provides a web-based platform with a mobile responsive application to manage business relationships with other I-Whiz Users. I-Whiz platform and software uses data storage and integration capabilities including but not limited to data migration, data synchronization, data quality actions, or applications and event-based integrations and notifications.
- “Metadata” means technical information about the services in the cloud, including logs, metrics, and audit trail events used by I-Whiz to analyze the performance of the I-Whiz software and/or the I-Whiz Cloud Services.
- “Parties” means I-Whiz Pty Ltd and the User to this agreement.
- “User” means and includes persons who each have registered to use the I-Whiz Cloud Services.
Grant of Licence.
- permit other non-User’s to use the I-Whiz Cloud Services under User’account;
- remove or modify any program or services markings or any notice of I-Whiz’s or its Licensor’s proprietary rights;
- make the I-Whiz Cloud Services, including any I-Whiz programs or materials to which User is provided access, available in any manner to any third party;
- modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish or download any part of the I-Whiz Cloud Services,
- disclose results of any benchmark tests or performance tests of the I-Whiz Cloud Services without I-Whiz’s prior written consent; and
- sublicense, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the I-Whiz Cloud Services or materials available, to any third party, except as expressly provided under this Agreement.
(If User has downloaded any I-Whiz Software as part of the I-Whiz Cloud Services, such I-Whiz Software shall be licensed in accordance with the terms of this Agreement).
Account Access & Data.
- User will be assigned a unique identity and password to access the I-Whiz Cloud Services. The I-Whiz Cloud Services may be accessed by the registered User for which User has a license to use such I-Whiz Cloud Services. (Each User will have its own identity namely a valid username, email and password (the latter created by the User) provided by I-Whiz Cloud Services).
- User shall be responsible for identifying and authenticating its access, for approving access by such User’s to the I-Whiz Cloud Services, for controlling against unauthorized access by such Users, and for maintaining the confidentiality of user names, passwords and account information. I-Whiz is not liable for any harm caused by User, including individuals who were not authorized to have access to the I-Whiz Cloud Services.
- User shall be responsible for all activities that occur under User’s passwords or accounts or as a result of Users access to the I-Whiz Cloud Services.
- Furthermore, User agrees not to transmit or store infringing, obscene, threating, libelous, or otherwise unlawful or offensive content, materials or information that violates the privacy rights of any person or to transmit or store material containing software virus, worms, trojan horses or other harmful computer code when using the I-Whiz Cloud Services. User agrees that User shall abide by all applicable local, state, national and international laws and regulations in connection with User’s use of the I-Whiz Cloud Services, including those related to taxes, data privacy and the transmission of technical or personal data. I-Whiz does not own or accept any responsibility for any content, data or material that User processes or submits to the I-Whiz Cloud Services in the course of User’s use of such services.
- I-Whiz will have no access to any User data until User transmits such data through its firewall to the I-Whiz Cloud Services. I-Whiz shall not be liable or responsible for the deletion, correction, destruction, damage, loss or failure to store any User data. User shall be fully responsible for all internet access and connectivity issues to the I-Whiz Cloud Services.
- User shall be responsible and agrees that the content that User submits, posts or displays shall:
- be true, accurate, complete and lawful;
- not be false, misleading or deceptive;
- not contain information that is defamatory, libellous, threatening or harassing, obscene, objectionable, offensive, sexually explicit or harmful to minors;
- not contain information that is discriminatory or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- not violate the Terms, or any applicable policies and Agreements
- not violate any applicable laws and regulations (including without limitation those governing export control, consumer protection, unfair competition, or false advertising) or promote any activities which may violate any applicable laws and regulations;
- not contain any link directly or indirectly to any other web Sites which includes any content that may violate the Terms.
- User shall be responsible and further agrees:
- to carry on your activities on I-Whiz Cloud Services in compliance with any applicable laws and regulations;
- to conduct business transactions with other Users on I-Whiz Cloud Services in good faith;
- to carry on your activities in accordance with the Terms;
- not use the I -Whiz Cloud Services to defraud any person or entity;
- not impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
- not engage in spamming or phishing;
- not engage in any other unlawful activities or encourage or abet any unlawful activities;
- not involve attempts to copy, reproduce, exploit or expropriate I-Whiz’ proprietary directories, databases and listings and any other copyright or intellectual property;
- not involve any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information;
- not involve any scheme to undermine the integrity of the data, systems or networks used by I-Whiz Cloud Services or gain unauthorized access to such data, systems or networks;
- User not, and your director(s), officer(s), controlling party/ies, affiliates and legal jurisdiction (in which any of the foregoing persons or entities is organized or has operations) are not, persons or entities that are subject to any economic or fraud sanctions of any governmental, international or regulatory entities; and
- not to engage in any activities that would otherwise create any liability for I-Whiz or our affiliates.
- Users are prohibited to engage in activities which are identical or similar to I-Whiz business processes which is subject to a pending patent application owned by the Licensor.
Fees and Taxes
- Service Fees: Each User shall pay I-Whiz the applicable percentage % as a Service Fee for each transaction (unless it is cancelled within 24 hours from the time it was confirmed on the I-Whiz Cloud Services less any processing fee charged by the third party payment gateway used by I-Whiz Cloud Services). The percentage % of the Service Fee is set out in the Pricing tab on the I-Whiz Cloud Services website which may be amended from time to time. All monetary amounts are specified and shall be paid in the lawful currency stipulated therein on the I-Whiz Cloud Services.
- AWS Storage Fees for Suppliers: Products uploaded on I-Whiz Cloud Services are subject to AWS storage charges. Credit card payment details shall be provided prior to uploading any products on the I-Whiz Cloud Services. Payments will be charged monthly according to each Supplier's total usage and processed automatically subject to cancellations.
- Taxes: Any amounts other than the % Service Fee that are payable by Customer to I-Whiz under this Agreement from time to time are exclusive of any tax, levy, GST, VAT or other relevant governmental charge that may be assessed by any jurisdiction (Taxes).
Transaction between Users
- I-Whiz provides electronic web-based platforms for exchanging information between buyers and sellers of products/produce. I-Whiz Cloud Services uses a third -party transaction platform for Users to conclude their payment transactions. However, for any I-Whiz Cloud Services, I-Whiz does not represent either suppliers or the buyers in specific transactions and is NOT their agent or an auctioneer.
- I-Whiz does not control and is not liable or responsible for the quality, safety, delivery, lawfulness or availability of the products/ produce listed or offered for sale on the I-Whiz platform by supplier or the ability of the suppliers’ to complete a sale or the ability of buyers to complete a purchase.
- To the extent that I-Whiz can limit the risk of improper use of the platform by Users, it has integrated third party payment platforms to: (a) authorise and capture payments from buyer(s) upon order confirmations and (b) to transfer and pay the supplier (s) upon confirmation of receipt of orders by buyer(s).
- Transactional risk – Notwithstanding the foregoing, regardless of the systems put into place to minimise the transactional risk , each User acknowledges that it is fully assuming and accepting the full risks of conducting any purchase and sale transactions in connection with using the I-Whiz Cloud Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to products that are the subject of transactions using the I-Whiz Cloud Services.
- Such risks shall include, but are not limited to, misrepresentation of products /produce, fraudulent representations of the products, unsatisfactory quality, failure to meet specifications, defective or dangerous products, unlawful products, delay or default in delivery or payment, cost miscalculations, breach of warranty, breach of contract and transportation accidents. Such risks also include the risks that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products offered or displayed on the I-Whiz Cloud Services may violate or may be asserted to violate third party rights, and the risk that User may incur costs of defence or other costs in connection with third parties’ assertion of third party rights, or in connection with any claims by any party that they are entitled to defence or indemnification in relation to assertions of rights, demands or claims by third party rights claimants.
- Such risks also include the risks that consumers, other purchasers, end-users of products or others claiming to have suffered injuries or harms relating to products originally obtained by Users of the I-Whiz Cloud Services as a result of purchase and sale transactions in connection with using the I-Whiz Cloud Services may suffer harms and/or assert claims arising from their use of such products/ produce.
- Each User agrees that I-Whiz shall not be liable or responsible for any damages direct or consequential, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.
- Users are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of the I-Whiz Cloud Services including, without limitation, their respective terms regarding payment, returns, warranties, freight, shipping, insurance, fees, taxes, title, licenses, fines, permits, handling, transportation and storage.
- User agrees to provide all information and materials as may be reasonably required by I-Whiz in connection with the User’ transactions conducted on, through or as a result of use of the I-Cloud Services.
- I-Whiz has the right to suspend or terminate any User’s account if the User fails to provide the required information and materials.
- In the event that any User has any dispute, claim, issue, demand, notice with any party to a transaction, such User agrees to release and indemnify I-Whiz (and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such transaction, representation and communication.
- In the event of any disputes being lodged, User will be responsible and pay for any fees deducted by the third party payment gateway upon lodgement of the dispute with I-Whiz Cloud Services.
In the case of deferred payments elected by a User to payout another User ( ie- Buyer to Supplier), I-Whiz will not be liable for any insufficiency of funds that may result or ensure to pay out the Supplier from the option selected by the Buyer. I-Whiz will not assume any liability regardless of whether there are sufficient funds or otherwise as set out in these Terms and Conditions.
Breach by User
- If any User is found to be in breach of the Terms, or if I-Whiz has reasonable grounds to believe that a User is in breach of any Terms, I-Whiz in its sole discretion, shall without any limitation have the right to:
- suspend or terminate forthwith the User’ account and any and all accounts linked to that User;
- restrict, or deny access to current or future use of any I-Cloud Services;
- remove any product listings or other User material content that the User has submitted, posted or displayed, or imposing restrictions on the number of product listings or User Content that the User may post or display;
- impose other restrictions on the User’ use of any features or functions of any I-Whiz Cloud Service as I-Whiz may consider appropriate; and
- Take any other corrective actions which may be required, necessary or appropriate.
- Without limiting the generality of the provisions of the Terms herein, a User would be deemed to be in breach of the Terms in any of the following circumstances:
- Any act or conduct contrary to the Terms with I-Whiz;
- upon complaint or claim from any User of either a non- payment, non-delivery of an order and after making reasonable enquiries of the transactions and communications entered on the I-Whiz Cloud Services, I-Whiz has reasonable grounds to believe that such User has wilfully or materially failed to perform its duties.
- I-Whiz has reasonable grounds to suspect that a User entered, provided false or misleading information in any transaction with another User.
- I-Whiz has reasonable grounds to suspect that any information provided by the User is not current or complete or is untrue, inaccurate, or misleading, or
- I-Whiz believes that the User’s actions may cause financial loss or legal liability to I-Whiz or our affiliates or any other Users.
- Each User agrees to indemnify I-Whiz, its directors, employees, agents and representatives and to hold them harmless, from any and all damages, losses, claims and liabilities (including legal costs on a full indemnity basis) which may arise from a User’ submission, posting or display of any User Content, from use of the I-Whiz Cloud Services, or from User’ breach of the Terms.
I-Whiz and its Licensor retain all ownership and intellectual property rights to the I-Whiz Cloud Services, including pending patent applications on the business processes, any patents granted thereon, registered global trademarks registered or otherwise pending, copyright in material on the I-Whiz website, and derivative works thereof or modifications or improvements thereto and no other license to the I-Whiz Platform is granted to User by implication, estoppel or otherwise.
I-Whiz will use commercially reasonable efforts to make the I-Whiz Cloud Services available 24 hours a day, 7 days a week, except for: (a) scheduled downtime or (b) any unavailability caused by circumstances beyond I-Whiz’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet service provider failures or delays.
I-Whiz represents and warrants that it will provide the I-Whiz Cloud Services in a manner consistent with general industry standards under normal use and circumstances.
Warranty Disclaimer and Limitations.
- Save for what is set forth in clause 8 above, the I-Whiz Cloud Services are provided “as is” without warranty of any kind, and I-Whiz and its Licensor make no warranties whether expressed, implied or statutory regarding or relating to the I-Whiz Cloud Services furnished or provided to User under this agreement. To the maximum extent permitted under applicable law, I-Whiz and its Licensor specifically disclaim all implied warranties of merchantability, satisfactory quality, fitness for a particular purpose and non-infringement with respect to the I-Whiz Cloud Services provided by I-Whiz hereunder, and with respect to the use of the foregoing.
- Further, I-Whiz does not warrant results of use or that the I-Whiz Cloud Services will be error free or that the User’s use of the I-Whiz Cloud Services will be uninterrupted. I-Whiz uses a third -party data center to host the I-Whiz Cloud Services. User acknowledges that I-Whiz does not control the transfer of data over such third -party facilities, including the internet, and that the I-Whiz Cloud Service may be subject to limitations, delays, and other problems inherent in the use of such third-party facilities. I-Whiz is not responsible for any delays, delivery failures, or other damage resulting from such problems.
- Further, I-Whiz does not take any responsibility or liability for any information supplied on its platform by the Users; their conduct in supplies and deliveries or with their supply arrangements.
Limitation of Liability
Disclaimer of Certain Damages.
In no event shall I-Whiz or its Licensor be liable for any loss of profits, loss of use, business interruption, loss of data, cost of substitute goods or services, or for any indirect, special, incidental or consequential damages of any kind in connection with or arising out of the use or inability to use the I-Whiz Cloud Services, whether alleged as a breach of contract or tortious conduct, including negligence, even if a User has been advised of the possibility of such damages. The I-Whiz Cloud Services may be subject to limitations, delays, inaccessibility and other problems inherent in the use of the internet. I-Whiz is not responsible and disclaims all liability for any delays, failures or damages resulting from such problems.
I-WHIZ’S OR ITS LICENSOR’S AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED OR OTHERWISE BE LIMITED TO ANY AMOUNT USER WAS REQUIRED TO PAY I-WHIZ FOR ANY SUBSCRIPTION FEE (IF APPLICABLE) OR OTHERWISE NIL.
USER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
User shall indemnify and hold I-Whiz, its Licensor and its subsidiaries, affiliates, officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including its full legal fees and expenses on an indemnity basis or as incurred/spent by I-Whiz ) arising out of or in connection with the claim of a third party or data subject alleging that the User data or its use has infringed the rights of, defamed or otherwise caused harm to, a data subject or third party, or violated applicable law; provided in any such case that I-Whiz:
- gives written notice of the Claim promptly to User or the appropriate User’ representative;
- gives User sole control of the defense and settlement of the Claim (provided that any settlement releases I-Whiz of all liability and such settlement does not affect I-Whiz’s business);
- provides User all available information and assistance reasonably requested; and
- has not compromised or settled such Claim.
Privacy; Security; Disclosures.
I-Whiz’s privacy and security policies may be viewed at http://www.i-whiz.com.
I-Whiz reserves the right to modify its privacy and security policies from time to time or as required by applicable law. The I-Whiz Cloud Services follows best practices for data security, using a third-party data center that is independently audited and certified as its host. (Compliance standards for such third party facility may be found at http://aws.amazon.com/compliance/ and http://aws.amazon.com/compliance/iso-27001-faqs/).I-Whiz occasionally may need to notify all Users of the I-Whiz Cloud Services of important announcements regarding the operation of the I-Whiz Cloud Services and may do this online or via email through the announcement Media links.
14 Terms and Termination.
The Terms of the I-Whiz Cloud Services shall be effective and commence upon registration (excluding the trial period) unless User agrees to terminate the I-Whiz Cloud Services by closing the account.
Suspension of the I-Whiz Cloud Services
In addition to its other rights under this Service Agreement, I-Whiz may suspend User’s access to the I-Whiz Cloud Services upon written notice to:
- comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or
- for User’s freeze/cancelation/hold of direct debit facilities or for
- any unauthorized use of the I-Whiz Cloud Services by User TOU or any of its other Users. If suspended, I-Whiz will promptly restore use of the I-Whiz Cloud Services to User as soon as the event giving rise to the suspension has been resolved to I-Whiz’s satisfaction.
The terms of the Service Agreement shall survive any termination or expiration of this Service Agreement.
Contracting Party, Governing Laws, Jurisdiction and Notices
This Service Agreement shall be governed by the laws of the Commonwealth of Australia and each Party unequivocally submits to both the Laws and the Courts of Victoria in Australia. Any dispute regarding the interpretation, the performance or the termination of this Service Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdictions of the Courts of Victoria in Australia.
- Assignment. User may not assign this Service Agreement, in whole or in part, without the prior written consent of I-Whiz. Any assignment in violation of this Section 17.1 shall be void and of no effect. Subject to the foregoing, this Service Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.
- Legal Fees. In any judicial proceeding between User and I-Whiz arising out of or relating to this Service Agreement, the prevailing Party shall be entitled to recover all expenses incurred as a result of the proceeding, including all legal fees.
- Force Majeure. Neither Party will be liable for or be considered to be in breach of or default under this Service Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control.
- Non-waiver.Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Service Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
- Language. The governing language of this Service Agreement shall be English. Any translation of this Agreement is made for information purposes only and the English language version shall prevail.