Last updated September 2021
This agreement is between Cloutly Co Pty Ltd ACN 637 155 045 of WOTSO Workspace Level 2, 194 Varsity Parade, Varsity Lakes QLD 4227 (Cloutly, Us, We, Our) and you (You).
Access to this Website is permitted on a temporary basis. Cloutly will not be liable if for any reason this Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts or all of this Website.
1.3. Linked sites
This Website may contain links to other websites (Linked Sites), which are not operated by Cloutly. Cloutly has no control over the Linked Sites and accepts no responsibility for them or for any loss or damage that may arise from Your use of them.
(a) You must not misuse this Website. You will not:
I. commit or encourage a criminal offense;
II. transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene;
III. hack into any aspect of the Website; corrupt data; cause annoyance to other users;
IV. infringe upon the rights of any other person's proprietary rights;
V. send any unsolicited advertising or promotional material, commonly referred to as “spam”;
VI. attempt to affect the performance or functionality of any computer facilities of or accessed through this Website.
Breaching this provision may constitute a criminal offense and Cloutly will report any such breach to the relevant law enforcement authorities and if appropriate, disclose Your identity to them.
(b) Cloutly will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect Your computer equipment, computer programs, data or other proprietary material due to Your use of this Website or to Your downloading of any material posted on it, or on any Linked Sites.
1.5. Intellectual property, software and content
The intellectual property rights in all software and content (including photographic images) made available to You on or through this Website remain the property of Cloutly or its licensors and are protected by copyright laws and treaties around the world. All such rights are reserved by Cloutly and its licensors. You may store, print and display the content supplied solely for Your own personal use. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the content supplied to You or which appears on this Website nor may You use any such content in connection with any business or commercial enterprise.
Cloutly retain the right to describe and publish copies to our website or portfolio of any deliverables or services provided to You, including testimonials from You, your name, company name, company logo, images and trade marks, plus outcomes you have achieved using Cloutly, where that information is either publicly available or does not contain confidential information.
1.7. Disclaimer of liability
(a) Subject to any non-excludable consumer guarantees and other consumer protection provisions set out in the Australian Consumer Law, the material displayed on this Website is provided without any guarantees, conditions or warranties as to its accuracy.
(b) To the fullest extent permitted by law Cloutly hereby expressly excludes all warranties and other terms which might otherwise be implied by statute, common law or the law of equity and must not be liable for any damages whatsoever, including but without limitation to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, performance or failures of this Website or the Linked Sites and any materials posted on those sites, irrespective of whether such damages were foreseeable or arise in contract, tort, equity, restitution, by statute, at common law or otherwise.
(c) This does not affect Cloutly’s liability for death or personal injury arising from its negligence, fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
1.8. Linking to this website
You may link to Cloutly’s home page, provided You do so in a way that is fair and legal and does not damage Cloutly’s reputation or take advantage of it, but You must not establish a link in such a way as to suggest any form of association, approval or endorsement on Cloutly’s part where none exists. You must not establish a link from any website that is not owned by You. This Website must not be framed on any other site. Cloutly reserves the right to withdraw linking permission without notice.
1.9. Disclaimer as to ownership of trade marks, images of personalities and third party copyright
Except where expressly stated to the contrary all persons (including their names and images), third party trade marks and content, services and/or locations featured on this Website are in no way associated, linked or affiliated with Cloutly and You should not rely on the existence of such a connection or affiliation. Any trade marks/names featured on this Website are owned by the respective trade mark owners. Where a trade mark or brand name is referred to it is used solely to describe or identify the products and services and is in no way an assertion that such products or services are endorsed by or connected to Cloutly.
2. Service agreement
By creating an account with us You agree to pay the fees and receive the services based on the service level (Starter, Growth or Power) and plan duration (Monthly or Annually) chosen by You when You register on this website (Your Plan), and You agree to be bound by the terms and conditions contained in clauses 1 to 3 of this agreement.
(a) This agreement will continue for one month (in the case of a monthly plan) or twelve months (in the case of an annual plan) from the date it is entered into (Termination Date).
(b) Either party may provide notice to the other party that they do not wish for this agreement to renew at any time prior to the Termination Date by:
i. For You:
A. by logging into Your account on our website and following the prompts to cancel Your account; or
B. by contacting Cloutly at the address or email address nominated in clause 2.9(b) of these terms and requesting that Your account be cancelled;
ii. For us: by emailing You at Your nominated email address.
(c) If notice is not given by either party in accordance with clause 2.1(b), the Termination Date is extended by a further month (in the case of a monthly plan) or a further twelve months (in the case of an annual plan) and is varied in accordance with clauses 2.7(c).
(d) If Your Plan is an annual plan, we will provide You with a written reminder of the Termination Date between 14 and 28 days prior to the Termination Date.
(a) Our obligation to provide You with any services is subject to the satisfaction and continuing satisfaction of the following conditions:
i. You must provide Cloutly with any information required by Cloutly for the purposes of providing You with those services; and
ii. You must pay Cloutly any fees, costs or other amounts owed to Cloutly by the due date for payment.
(a) Cloutly will provide You with certain services based on Your Plan (Services).
(b) The different service levels and the Services that are included in each service level are provided to You at the time of entering into this agreement.
(c) You can change Your service level at any time by accessing Your Account on our Website, in which case the new service level and Fees payable by You will take effect from the next billing period.
(d) You can change Your plan duration at any time by accessing Your Account on our Website, however if changing from a yearly plan to a monthly plan any amounts already paid by You will be held by Cloutly and credited against any future Fees that are payable by You.
(e) You acknowledge that Cloutly does not prevent customers and clients from leaving You reviews in public places of their own volition.
(f) You accept full responsibility and liability for any Review Campaigns sent by Cloutly on Your behalf and at Your request to Your clients, and You indemnify Cloutly against any claims or damages suffered by any other party following the issuing of such invitations including claims of spam, harassment, or otherwise inappropriate content, whether such invitations are sent by email, text message or otherwise.
(g) If consent is required from any person prior to sending them a communication, You must obtain any required consents from them prior to using the Services to send them such communications and You indemnify Cloutly and hold them harmless against any claims for failing to obtain such consent.
(h) Cloutly has no affiliation with or control over any external websites or review platforms. The Services only extend to monitoring those websites and providing You with information from those websites. Cloutly and the Services provide You with facilities to respond to reviews via our Website, however Cloutly does not otherwise interact with or deal with those reviews or external websites in any way.
(i) Cloutly does not guarantee that the Services can be used in relation to every website and review platform, and You acknowledge that certain websites and review platforms may not be accessible by or interoperable with the Services or certain parts of the services including Reputation Monitoring or Review Management.
(j) Any Review Invitations sent by Cloutly on Your behalf, and website widgets generated by Cloutly, will include writing, imagery, colours, slogans and links relating to Cloutly (Branding) as they may choose in their sole discretion, provided that such Branding must not occupy a significant portion of such invitations.
(a) Cloutly will provide You with certain services based on Your Plan (Services).
(b) You agree that You will:
i. not share Your Account with any other person, except where You are registering on behalf of a business, in which case You may share the Account with the employees or other registered owners of the business for the legal needs of that business;
ii. if You do share Your Account with any other persons, You agree that those persons have full authority to bind You in any actions that they take within Your Account or our Website (including changing Your plan);
iii. use the Website only for purposes that are permitted by these Terms and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
iv. notify Us immediately following any unauthorised use of Your Account or any other breach of security;
v. not expressly or impliedly impersonate another user of our website or use the Account or password of another user of our website at any time; and
vi. not to use our Website or Your Account for any illegal and/or unauthorised use.
(a) You agree to pay us the fees based on Your Plan (Fees).
(b) All Fees charged by Cloutly include GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act), unless You are not located in Australia, You accept an individual proposal and contract from Cloutly for an enterprise plan, or the GST Act otherwise does not apply to You or to this agreement in which case the Fees do not include any GST.
(c) If Your Plan is a monthly plan, the Fees must be paid as follows:
i. For the initial month: on entering into this agreement;
ii. For all other months after the first: prior to the start of the month.
(d) If Your Plan is an annual plan:
i. You acknowledge that any fees shown on the Website in relation to the plan as being a monthly fee are for comparison purposes only, and all Fees payable by you will be for instalments of one year at a time calculated by multiplying any such monthly fee by twelve;
ii. You acknowledge that the Fees are payable in instalments of one year in advance and in consideration for being at a discounted rate they are not refundable other than as set out in these terms; and
iii. the Fees payable by You will be a lump sum payment for twelve months which must be paid as follows:
A. For the first instalment: on entering into this agreement;
B. For all further instalments: prior to the start of the month.
(e) Invoices for any amounts previously paid by You will be available to you in your Account, and invoices for any amounts that are due:
i. For monthly plans: will be provided on receipt of payment from you;
ii. For annual plans: will be provided prior to the date that the payment is due.
(f) If the Fees are not paid by the due date for payment and become outstanding for more than thirty days, Cloutly may:
i. Cease providing the Services or otherwise meeting their obligations under this agreement until all outstanding amounts are paid in full;
ii. Suspend Your Account and prevent access to the whole or part of the Website and/or the Services until all outstanding amounts are paid in full; and/or
iii. Terminate this agreement by written notice to You.
(g) In the event of suspension of the Services, restriction of access to Your Account or termination of this agreement under clause 2.5(f), You indemnify Cloutly and hold them harmless against any damage or losses suffered by You due to Your inability to access the Services or the Website or due to the loss of any data.
2.6. Early Termination and Refunds
(a) If You are unsatisfied with our Services for any reason, You can notify us in writing within 30 days of entering into this agreement to request that this agreement be terminated (Early Termination Notice).
(b) Your Early Termination Notice must:
i. Include Your full name;
ii. Specify the reasons why You are unsatisfied with our Services; and
iii. Be sent to us at one of our addresses listed in clause 2.9.
(c) Upon receipt of a valid Early Termination Notice, this agreement is terminated and We will refund all amounts paid by You within 14 days of receiving the notice.
2.7. Updates and changes
(a) We regularly change and upgrade our standard services and service levels by making improvements and other changes, as detailed in the following sections. The services and service levels listed on our website and promotional material at any given time may not be the same as those that You are entitled to receive under this agreement.
i. If We make any improvements to our standard services which are included in Your chosen service level in Your Plan, and which we think are beneficial to You, we may notify You of the intended change.
ii. If We provide You with a notice under clause 2.7(b)i, that notice will include an option to opt out of the upgraded service.
iii. If You do not choose to opt out of the upgraded service, Your Plan will be amended to include the upgraded service.
iv. Nothing in this clause entitles Us to make any changes to Your Plan which are detrimental to You without Your agreement.
(c) Other changes
i. We may notify You from time to time of changes to our standard services, service levels and plans (Changes).
ii. If any Changes would result in the Services in Your Plan being different to the standard services offered by Us, Your Plan will be varied to the extent of the discrepancy the next time that this agreement is renewed pursuant to clause 2.1(c).
iii. If any Changes would result in Your Plan effectively being no longer provided by Us, Your Plan will be changed to another reasonably equivalent plan offered by Cloutly with the reasonably equivalent plan being determined based on price and features.
(a) Cloutly may provide You access to our Affiliate Program from time to time through Your Account on our Website.
(b) In order to receive any benefits under this Affiliate Program, You must:
i. send Your Unique Referral Link, which is available through Your Account, to a third party who must use that link to create an account with Cloutly (Referred Customer); and
ii. insert an email address into the Affiliate Program page of Your Account that is linked to a PayPal account that is eligible to accept payments.
iii. meet the Payout Criteria outlined in Your Account, which includes a requirement for any customers referred to Cloutly by You to maintain an active, paid plan for a minimum of 1 month without cancellation, freezing/pausing their subscription or having an account in arrears. You must also meet the minimum commission payout threshold outlined in Your Account.
(c) As an Affiliate, you agree to the following PPC Guidelines: you may not bid on any of our trademarked terms (Cloutly) including any variations or misspellings thereof for search or content-based campaigns on Google, Facebook, Reddit, Twitter or any other network. Additionally, You may not promote Cloutly on any site that:
i. Promotes violence;
ii. Promotes sexually explicit materials;
iii. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
iv. Promotes illegal activities;
v. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
vi. Includes "Cloutly" or variations or misspellings thereof in its domain name;
vii. Contains software downloads or scripts that potentially enable diversions of commission from other affiliates in our program;
viii. resembles our website, nor design your website in a manner which leads customers to believe you are Cloutly or any other affiliated business.
(d) You will receive payments into Your nominated PayPal account based on amounts paid by the Referred Customer to Cloutly until their account is cancelled or terminated.
(e) The payments made to You will be calculated based on:
i. the amounts paid by the Referred Customer excluding GST; and
ii. the Commission Rate published on our Website and visible in Your Account from time to time.
(a) Any notices that we give to You will be sent by email to the email address nominated by You.
(b) Any notices that You give to us may be sent by:
i. Email to [email protected]
ii. Post to: Cloutly Co Pty Ltd located at Level 2, 194 Varsity Pde, Varsity Lakes 4226 QLD Australia.
(c) Any notices sent by email will be treated as received when it enters the recipient’s information system.
(d) Any notices given by post will be treated as having been received on the second business day after posting.
2.10. Events beyond control
Neither party shall be liable to the other party for any loss caused by any failure to observe the terms and conditions of this agreement where such failure is occasioned by causes beyond its reasonable control including but not limited to by fire, flood, natural disasters, riot, strike, acts of terrorism, war, restrictions and prohibitions or any other actions by any government or semi government authorities.
3. Universal terms
3.2. Limitation of Liability
(a) You expressly understand and agree that Cloutly, our affiliates, employees, agents, contributors, third party content providers and licensors shall not liable to You for any loss or damage, or for any direct, indirect, incidental, special, consequential or exemplary damages which may be incurred by You, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
(b) Cloutly is not responsible or liable in any manner for any content posted on the Website or any platform that hosts reviews, whether posted by Cloutly, You or by any other third parties.
(c) We do not control and are not responsible for the behaviours and actions of any of Your customers or their reviews. Accordingly, we are not responsible for any offensive, inappropriate, obscene or unlawful content or actions that You may encounter on the Website or in connection with Your use of the Services.
(d) You understand that we are not a party to and will not have any liability with respect to the reviews posted by Your customers. Any claims You have arising out of the reviews are to be brought against the customer, not Us, and You indemnify Us from all claims, suits, demands and legal actions arising from any and all disputes between You and Your customers.
(a) You agree to indemnify Us and our officers, directors, employees, sublicensees, agents, affiliates, successors and assigns from and against any and all claims, damages, liabilities, losses, settlements, costs and expenses (including, without limitation lawyers’ fees and court costs) which arise out of or relate to Your use of the Website and/or Services, including but is not limited to:
i. any misuse of the Website or Services by You, including and without limitation, any dishonest, inaccurate, incomplete, fraudulent, negligent, wrongful, unlawful, or criminal act or omission by You;
ii. Your breach of the Terms; or
iii. any activity which You engage on or through Cloutly.
(b) This indemnity will survive termination of the Terms.
If any part of this agreement is unenforceable (including any provision in which Cloutly excludes our liability to You) the enforceability of any other part of this agreement will not be affected and all other clauses remain in full force and effect. So far as possible where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause must be interpreted accordingly. Alternatively, You agree that the clause must be rectified and interpreted in such a way that closely resembles the original meaning of the clause/sub-clause as is permitted by law.
We operate a complaints handling procedure which we will use to try to resolve disputes when they first arise, please let us know if You have any complaints or comments.
3.6. Governing Law
This agreement is governed by the laws in force in Queensland, Australia. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction.