Terms and Conditions

Last updated on 14th May 2021

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Platformer.com

(Platformer Cloud Pty Ltd - ABN: 68-608-425-976 )

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Definitions

In this Agreement:

1. PaaS means platform as a service.
2. Platformer Cloud means the use of Platformer Cloud Pty Ltd’s Cloud products , which are software products (including documentation) that is installed and hosted on servers maintained and secured by Platformer Cloud, or contracted for by Platformer Cloud Pty Ltd, and accessible by the internet.
3. Beta means when a product is released to the market for testing and feedback.
4. Business Day means any day which is not a Saturday, Sunday or a public holiday in Melbourne, Victoria, Australia.
5. Commencement Date means either the date specified in the Proposal or the date on which the purchase of the Platformer Cloud subscription plan is accepted (as applicable).
6. Confidential Information means, regardless of the time or method of disclosure: (i) all information of, or used by the disclosing party relating to that party's transactions, operations and affairs and includes the Subscription; (ii) all other information treated by the disclosing party as confidential; and (iii) all information the receiving party knows, or reasonably ought to know is confidential; but does not include information that is public knowledge, required to be disclosed under law or otherwise within the knowledge of the receiving party (otherwise than as a result of a breach of a confidentiality obligation of the receiving party).
7. Contract Material mean all materials, reports, diagrams, code, processes, methods, specifications and other works created or produced by us arising in connection with the provision of the Services or additional Services including our Pre-Existing Materials.
8. Customer Data means any content entered into Platformer Cloud.
9. Documentation means manuals or other documentation that we make available with the Services or additional Services.
10. Fees mean the fees payable by you for the Services and additional Services (as applicable) in accordance with the terms and conditions.
11. GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any regulations made pursuant to that Act.
12. Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
13. Policies means any of our policies which can be accessed on the Website, including without limitation, our privacy and security policy and our acceptable use policy.
14. Pre-Existing Materials mean any of our materials existing at the date of this Agreement, including all trademarks, designs, design specifications, software, hardware or other documentation and materials used in our business or operations.
15. Proposals means the proposal attached to these Terms and Conditions issued by us to you in relation to the Services and/or additional Services (as applicable).
16. Scheduled Outages is defined in Annexure A.
17. Service Credits means the service credits set out in the Refund Policy.
18. Service Levels means the service levels set out in Annexure A.
19. Services mean the Platformer Cloud as requested by you, either: (a) as described in the Proposal; or (b) in the case of a Subscription, selected by you on our Website.
20. Subscription means an order for the Services and additional Services placed by you on our Website.
21. Term means either: (a) in the case of a Proposal, the term specified in the Proposal; or (b) in the case of a Subscription, 30 days.
22. Third Party Contract(s) means the contract(s) entered into between you and the Third Party Supplier.
23. Third Party Product(s) means the product(s) supplied by the Third Party Supplier.
24. Third Party Supplier means the supplier that supplies the Third Party Products (other than us).
25. Time to Resolve means the 1.5 hour window, during which we will use all commercially reasonable efforts to restore availability to your Platformer Cloud.
26. Website means the website located at www.platformer.com
27. Your content means all information and materials provided by you to us in connection with this Agreement.
28. FREE or Community Offering  means PaaS is provided Free of any fees AS IS without any indemnity OR warranty OR Service Level Agreements

Particulars

This is a legally binding agreement between you (you or your) and Platformer Cloud Pty Ltd (we, us or our).

1. IN THIS AGREEMENT ("Agreement"), "Customer", "you" and "your" refers to the Customer of each Platformer Cloud account holder, "we", "us", "our" and “Platformer Cloud” refers to Platformer Cloud PTY LTD. This Agreement explains our obligations to you, and explains your obligations to us for the Platformer Cloud Services. 
2. Platformer Cloud
   1. Legitimate use and access of the Service is made solely available for registered users.
   2. Subscription can be obtained after completing the registration procedure on the website www.platformer.com
   Recipient shall have access to the Service only for the duration of the Subscription Term.

3. FEES, INVOICING AND PAYMENTS

   As consideration for the Services, you agree to pay Platformer Cloud the applicable Service(s) Fees at the time of invoice.

   1. We will invoice you every 30 days.
   2. You must pay the fees by credit card, direct debit or Internet bank transfer. These payment methods can be selected at the time of purchasing your Subscription.
   3. You must pay any additional fees and charges (as set out on our Website), applicable to this Agreement (including, without limitation, late payments fees and administration fees).
   4. You authorise us to charge your payment method selected for the Fees and for any additional amounts incurred with your account (including, without limitation, late payment fees, interest charges, cancellation fees and any adjustment to the fees).
   5. If any change to your payment method is declined, you authorise us to continue to charge your payment method for the outstanding amount, together with any other applicable fees and charges until payment has been received.
   6. If for some reason your payment method has insufficient funds or has expired you must make alternative arrangements to pay the invoiced amount in full within five (5) days of the due date for payment. If you fail to do so, we may suspend the Service and/or additional Services without notice to you.
4. TERM

   This Agreement will start on the Commencement Date (date you register by accepting this Agreement) and continues for the Term. This Agreement will automatically renew for further successive terms of 30 days, unless terminated in accordance with this Agreement.

5. MODIFICATIONS TO AGREEMENT

   You acknowledge that the Services offered by us are constantly evolving; therefore, you agree that Platformer Cloud may modify this Agreement, or any other related and/or applicable agreement, as well as to adjust to changing circumstances. All amendments to this Agreement will be posted on our Website. Your continued use of our Services will constitute your acceptance of this Agreement with any revisions. If you do not agree to any change, you may request that your Service be cancelled. You agree that such cancellation will be your exclusive remedy if you do not wish to abide by any change to this Agreement, or any other related and/or applicable agreement.

6. LICENSE
   1. By accepting these Terms & Conditions, you are granted a limited, non-exclusive and revocable license to access:
      1. The Website; and/or
      2. The Services,
      in accordance with these Terms & Conditions.

   2. Platformer Cloud may revoke or suspend your license(s) in its absolute discretion for any reason that it sees fit, including your breach of these Terms & Conditions by your users. Platformer Cloud will ordinarily advise you of any suspension or revocation however it is under no obligation to do so.
7. USE

   You agree that you shall only use the Website and Services for legal purposes and shall not use either to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Platformer Cloud in its discretion.

8. AUTHORISED USERS
   1. The Customer shall authorise users to access the Services in its absolute discretion. Platformer Cloud accepts no liability for access to Customer Data by users authorised by the Customer or using login details of users authorised by the Customer.
   2. You are solely responsible for the security of your username and password for access to the Solution.
   3. You are responsible for ensuring users comply with these Terms & Conditions in full and liable for any breach by them.
9. CUSTOMER DATA
   1. Platformer Cloud obtains no right, title or interest in Customer Data including any Intellectual Property found within it. Platformer Cloud accepts no liability for the content of Customer Data.
   2. You are responsible for the accuracy, quality and legality of Customer Data and your acquisition of it, and the users that create, access and/or use Customer Data.Despite clause 9(a) Platformer Cloud shall be authorised to permanently delete Customer Data where outstanding Fees & Charges remain unpaid in accordance with clause 3.
   3. Despite clause 9(a) Platformer Cloud shall be authorised to permanently delete Customer Data where outstanding Fees & Charges remain unpaid in accordance with clause 3.
   4. Platformer Cloud shall not access, use, modify or otherwise deal with Customer Data except where required by compulsion of law or upon your authority (such as to provide Support).
   5. Unless agreed in writing otherwise, all primary Customer Data shall be physically located in Australia. You agree that Platformer Cloud may use any backup and failover services it sees fit at its discretion.
   6. Where this Agreement is terminated in accordance with these Terms & Conditions, Platformer Cloud shall ensure that all Customer Data is available to be transferred to you for a period of one calendar month, and any relevant Fees & charges shall apply to the return and transfer of this data despite the termination of the Agreement.
10. Intellectual property
    1. Website.All content on the Website is the copyright of Platformer Cloud. Without the express written permission of Platformer Cloud, you shall not:
       1. Replicate all or part of the Website in any way; or
       2. Incorporate all or part of the Website in any other webpage, site, application or other digital or non-digital format.
    2. Trademarks. Platformer Cloud has moral & registered rights in its trademarks and you shall not copy, alter, use or otherwise deal in the marks without the prior written consent of Platformer Cloud.
    3. Proprietary Information. The Website and Solution may use software and other proprietary systems and intellectual property for which Platformer Cloud has appropriate authority to use, and you agree that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. You warrant that you shall not infringe on any third-party rights through the use of the Solution or Website.
    4. Solution.You agree and accept that the Service is the Intellectual Property of Platformer Cloud and you further warrant that by using the Service you will not:
       1. Copy the Service or the services that it provides for your own commercial purposes; and
       2. Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Service or any documentation associated with it.
    5. Content. All content (with the exception of Customer Data) remains the Intellectual Property, including (without limitation) any source code, ideas, enhancements, feature requests, usage data, suggestions or other information provided by the Customer or any other party with respect to the Website or the Service.
11. YOUR ACCOUNT

    In order for us to provide our Services and/or additional Services you must sign-up with Platformer Cloud via https://beta.console.platformer.com/signup or using the sign-up links available on our main website https://www.platformer.com. In order to change any of your account information with us, you must use the account identifier and password that you selected when you opened your account with us. You agree to safeguard your account identifier and password from any unauthorised use. In no event shall we be liable for the unauthorised use or misuse of your account identifier or password.

12. POLICY

    You agree that your sign-up with Platformer Cloud shall be subject to suspension or cancellation: (i) until outstanding payments are paid in full; (ii) during payment disputes; (iii) during security breach; (iv) to correct mistakes by us; or (v) for the resolution of disputes concerning your registration.

13. ANNOUNCEMENTS

    We reserve the right to distribute information to you that is pertinent to the quality or operation of our Services and those of our service partners. These announcements will be predominately informative in nature and may include notices describing changes, upgrades, new products or other information to add security or to enhance your identity on the Internet.

14. LIMITATION OF LIABILITY
    1. We make no representations or warranties in relation to any Third Party Products.
    2. Our liability for breach of a statutory guarantee which cannot be excluded by law is limited, at our option, to either the supply of the Services (or equivalent services) again or the payment of the cost of having the Services supplied again. 

    3. You indemnify, defend and hold us harmless against all loss, damage, claims, liabilities, costs and expenses (including legal fees) arising from, or in connection with:

       1. any Third Party Products, including any failure by a Third Party Supplier to provide the Third Party Product(s) or comply with a Third Party Contract; 
       2. any claim or demand brought by third parties, including a claim that the intellectual property rights of any third party are infringed; 
       3. any negligent, wrongful, unlawful or fraudulent act or omission or any breach of this Agreement by you or your Associates; and
       4. any negligent, wrongful, unlawful or fraudulent act or omission or any breach of this Agreement by you or your associates.

    4. We exclude liability for:

       1. any issues or failure of installation or integration of the Third Party Products due to incompatibility with your hardware, software, firmware, protocols, systems or infrastructure;
       2. any costs, expenses, claims or liability suffered or incurred by you as a result of us complying with your directions; and
       3. loss of profit or revenue, loss of business opportunities, loss of software or data and any indirect or consequential loss arising in connection with this Agreement.
    5. To the extent permitted by law, our aggregate liability in connection with this Agreement will not exceed the Fees paid by you to us in the 30 days preceding the date of the claim.
    6. We will not be liable for any delay or non-performance of our obligations under this Agreement if it is caused by strike, fire, flood, failure of suppliers, or any other circumstances beyond our reasonable control.
15. SUSPENSION AND TERMINATION

    1. Without limiting any remedies available to us under this Agreement or at law, we may suspend the Services and/or terminate this Agreement with notice to you if:

       1. you fail to remedy a breach within 7 days of a notice from us requesting you to do so; 
       2. your Fees are outstanding for more than 7 days past the due date; or
       3. You become insolvent, bankrupt, enter into administration, are wound up or a receiver or creditor is appointed over any part of your business.

    2. You may terminate this Agreement at any time by sending a cancellation request to us at [email protected], subject to the following terms:

       1. if we receive your cancellation request at least 5 Business Days prior to the end of the then current Term, this Agreement will be terminated at the end of the then current Term; or

       2. if we do not receive your cancellation request at least 5 Business Days prior to the end of the then current Term:

          1. this Agreement will automatically renew for a further term on the last day of the then current term in accordance with clause 4; and
          2. we will charge you, and you must pay, the Fees for the renewed Term of this Agreement; and this Agreement will terminate on the last day of the renewed Term.
    3. We may terminate this Agreement at any time by giving you at least 30 days prior written notice. In this instance, we will refund any prepaid Fees applicable to the unused portion of any Services and/or additional Services.
    4. Upon the termination of this Agreement for any reason, you must pay all outstanding Fees to us and any reasonable costs incurred by us as a result of the termination (including third party cancellation fees and administrative costs).
16. REFUND POLICY
    1. Refund requests will be investigated promptly by our accounts team and must be made in writing via the customer support online portal (https://www.platformer.com)
    2. In order to process your refund as quickly as possible please state clearly where Platformer Cloud had failed to meet the Service Levels as defined in the Annexure A.
    3. Before subscribing to any Subscription Plan, you should always make sure that the software, Services and development kits perform according to the needed tasks. For evaluation versions or demos and videos for reference, please check our website https://www.platformer.com
17. BREACH

    You agree that failure to abide by any provision of this Agreement, any operating rule or policy or the Dispute Policy provided by us, may be considered by us to be a material breach and that we may provide a written notice, describing the breach, to you. If within fifteen (15) calendar days of the date of such notice, you fail to provide evidence which is reasonably satisfactory to us that you have not breached your obligations under the Agreement, then we may delete the registration or reservation of your account with Platformer Cloud and related products/services. Any such breach by you shall not be deemed to be excused simply because we did not act earlier in response to that, or any other breach by you.

18. INFORMATION

    As part of the registration process, you are required to provide us certain information and to update us promptly as such information changes such that our records are current, complete and accurate. You are obliged to provide us the following information: (a) your name, postal address, e-mail address, and voice and fax (if available) telephone numbers; of the billing contact for the primary account holder. 

19. DISCLOSURE AND USE OF REGISTRATION INFORMATION

    We will not disclose your registration information to any third party without your prior consent. (a) We will not process or maintain data about any identified or identifiable natural person that we obtain from you in a way incompatible with the purposes and other limitations which we describe in this Agreement. (b) We will take reasonable precautions to protect the information we obtain from you from our loss, misuse, unauthorised disclosure, alteration or destruction of that information.

20. NOTICES

    Any notice, direction or other communication given under this Agreement shall be in writing and given by sending it via e-mail or via regular mail. In the case of e-mail, valid notice shall only have been deemed to be given when an electronic confirmation of delivery has been obtained by the sender. E-mail notification to Platformer Cloud must be sent to [email protected] with the subject heading “Attention: Legal Matters”. Any e-mail communication shall be deemed to have been validly and effectively given on the date of such communication, if such date is a business day and such delivery was made prior to 4:00 p.m. Australian EST, otherwise it will be deemed to have been delivered on the next business day. In the case of regular mail notice, valid notice shall be deemed to have been validly and effectively given five (5) business days after the date of mailing Postal notices to Platformer Cloud shall be sent to: Platformer Cloud Pty Ltd, 162 Balwyn Road, Balwyn Melbourne VIC 3103, Australia Attention: Legal Matters 

21. ENTIRETY

    You agree that this Agreement, the applicable dispute policy and the rules and policies published by Platformer Cloud are the complete and exclusive agreement between you and us regarding our Services.

22. GOVERNING LAW

    This Agreement shall be governed by and interpreted and enforced in accordance with the laws of state of Victoria and the federal laws of Australia applicable therein without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in Melbourne, Victoria and you irrevocably consent to the jurisdiction of such courts.

23. INFANCY

    You attest that you are of legal age to enter into this Agreement.

24. FORCE MAJEURE

    You acknowledge and agree that neither we nor the applicable registry shall be responsible for any failures or delays in performing our respective obligations hereunder arising from any cause beyond our reasonable control, including but not limited to, acts of God, acts of civil or military authority, fires, wars, riots, earthquakes, storms, typhoons and floods.

25. PRIVACY

    Information collected about you is subject to the terms of Platformer Cloud’s privacy policy, the terms of which are hereby incorporated by reference. Platformer Cloud’s privacy policy can be found at: https://www.platformer.com/privacy-policy

26. CONTROLLING LANGUAGE

    In the event that you are reading this Agreement in a language other than the English language, you acknowledge and agree that the English language version hereof shall prevail in case of inconsistency or contradiction in interpretation or translation.

27. INDEMNITY

    You agree to indemnify and hold harmless us, our parent company, our Related Bodies Corporate as defined in the Corporations Act 2001 (Cth) and their respective directors, officers, employees, contractors, licensors and agents against any loss, damage, claim, proceeding, liability and cost (including legal costs on an indemnity basis) suffered or incurred in connection with a claim against any of them by a third party (including any end user) arising out of or relating in any way to: (i) your or any end user’s use of the Services; (ii) any content, data or other materials stored, transmitted, accessed, downloaded or used by you or any end user via the Services (including where such materials are alleged to infringe any intellectual property or other rights); (iii) any breach of this Agreement or any of our policies including the acceptable use policy; or (iv) any breach of applicable laws.

28. WARRANTY

    You expressly understand and agree that your access to and use of the Services is at your sole risk and that the Services are provided “as is” and “as available”. Without limiting the foregoing, and to the extent permitted by law, all express or implied representations, conditions, warranties, guarantees or other provisions that are not contained in the Terms (whether based in legislation, the common law or otherwise) are excluded, including any representations, conditions, warranties or guarantees as to acceptable quality, fitness for purpose, non-infringement or timeliness. If any condition, warranty, guarantee or other provision is implied or imposed in relation to the legal agreement between you and Platformer Cloud (whether based in legislation, the common law or otherwise) and cannot be excluded (a non-excludable term), and we are able to limit your remedy for a breach of such a non-excludable term, then our liability for such a breach of the non-excludable term is limited to one or more of the following at our option:

    1. In relation to goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
    2. In relation to Services, the supplying of the Services again or the payment of the cost of having the Services supplied again.
29. SEVERABILITY

    This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable by law.

Annexure A - Service Levels

1. Service Level

2. We will use reasonable endeavours to ensure that the Platformer Cloud provides Service Availability of at least 99.9% measured over a 30 days period, subject to the terms and conditions set out in this Annexure.

3. Definition of Service Availability 

4.  "Service Availability" describes the availability of: 

   1. a cloud instance (where the instance is up and available to the internet); and
   2. the hosting environment (being the servers, storage, routers, switches and internet connectivity) under our exclusive control.
5. Service Availability is measured as a percentage of time that the Platformer Cloud is operational and contactable from the internet, calculated over a 30 day period, excluding any Scheduled Outages.

6. Service Level inclusions and exclusions 

7. The Service Level applies only to a released product.

8. The Service Level does not apply to:

   1. any scheduled outages, being any outage windows scheduled by us when maintenance is required to be performed on the Platformer Cloud (Scheduled Outages);
   2. any services running within the cloud instances not provided via Platformer Cloud; 
   3. any Beta product (being any product released to the market for testing and feedback); 
   4. any outages or downtime initiated or caused by your acts or omissions, any software of configuration issues relating to your software, hardware or services.
9. We have no obligation to meet the Service Level if any undisputed invoice is overdue for payment or if your account is suspended for any reason in accordance with this Agreement.

10. Outages 

11. We will use reasonable endeavours to notify you of any Scheduled Outages at least 3 Business Days prior to the date on which the Schedule Outage is proposed to occur.
12. If we anticipate that the Services and/or additional Services will be offline for more than 30 consecutive minutes at any time, we will notify you by posting details on our Website.

13. Service Credits 

14. If we fail to meet any Service Level (Service Level Failure), your sole and exclusive remedy is to claim a Service Credit equal to 10% of the fees paid during the billing period or payable for the Services (excluding GST) in the billing period in which the Service Level Failure occurred, subject to the terms and conditions set out in this Annexure.

15. To claim a Service Credit, you must email us at [email protected] within 30 days of the Service Level Failure and provide the following details:

    1. your registered email address, contact name and phone number;
    2. details of the date(s) and time(s) of the Service Level Failure; and
    3. details of the outage you experienced (Service Credit Claim).
16. We will assess your Service Credit Claim within 15 Business Days of receipt of all information required to be provided pursuant to clause 10 of this Annexure.
17. If we are satisfied that a Service Level Failure occurred in accordance with your Service Level Claim, we will apply the Service Credit to any fees and charges invoiced by us to you within 3 months of the date of your Service Level Claim. We are not obliged to apply the Service Credit to any invoice after this timeframe.
18. Service Credits cannot be transferred or applied to another account, and are not redeemable for cash.

ACCEPTANCE OF AGREEMENT.

You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of the Service and are not relying on any representation agreement, guarantee or statement other than as set forth in this Agreement.