1. Overview

    1. This agreement is entered into by and between Idealstack Limited (Idealstack) and the client agreeing to these terms (Client), and is made effective as of the date of electronic acceptance by Client. This agreement covers Client use and access of the Idealstack Service and by accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.

  2. Definitions.

"Account" shall mean the account established by Client in connection with use of the Idealstack Platform

"Authorized User" shall mean any individual Client authorizes to access or use the Services on Client's behalf.

"Cloud Infrastructure Service" shall mean the compute capacity, data storage, data transmission, network and related infrastructure services made available by a cloud infrastructure service provider, including, without limitation, Amazon AWS

"Effective Date" is the earlier of: (a) the date of Idealstack's signature set forth on the Agreement, if any or (b) the "Order Form Effective Date" set forth on the first Order Form executed between Idealstack, Inc. ("Idealstack") and Client, as set forth below or in such Order Form ("Client").

"Fees" shall mean any fee or charge set forth in an Order Form.

"Order Form" shall mean a written document signed by Client and Idealstack, or an electronic form submitted by Client and accepted by Idealstack, including addenda and amendments thereto, that identifies the Services that Client has agreed to obtain from Idealstack and the corresponding Fees for such Services. Order Forms shall be deemed incorporated herein by reference.

"Idealstack Hosting System" shall mean the technology platform operated by Idealstack and accessible at http://idealstack.io and app.idealstack.io or is otherwise made available to Client and that enables Client to initiate, manage, monitor, and report on actions and activities of Client's websites, cloud applications, server instances, and other cloud infrastructure resources.

“Idealstack Hosting Images” shall mean software that runs inside the Client’s Cloud Infrastructure Service  to enable the Idealstack Hosting System to run Client’s websites

"Idealstack Materials" shall mean any documentation relating to the Services and any tools, products, downloadable software developed by Idealstack and made available to Client under This Agreement other than the Idealstack Platform

"Idealstack Platform" shall mean the Idealstack Hosting System, the Idealstack Hosting Images, and the data and information relating thereto but excluding: (i) the underlying physical infrastructure which the Idealstack Platform accesses and relies upon, (ii) the infrastructure made available by a provider of Cloud Infrastructure Services, (iii) Client software, applications, and data, and (iv) any third party software, applications, or data which utilize or are available through the Idealstack Platform.

"Services" shall mean the services made available by Idealstack from time to time.

"Subscription Account" means an Account with a specific duration, recurring Fees, and/or usage based Fees.

"Third Party Products" means the Cloud Infrastructure Service and any third party software, applications, or data which use or are available through the Idealstack Platform and which require Client to agree to and comply with a license agreement or terms of service associated with such products or services.

"Trial Account" shall mean any Account (other than a Subscription Account) for which Idealstack has imposed time limits, usage limits, or limits on access to certain elements or features of the Services.

“Site” shall mean the website at https://idealstack.io

 

  1. Description Of Services

    1. Idealstack Platform - Subscriptions Access to the Idealstack Platform, based on Subscription Account

    2. Consulting & Support Services - Idealstack may also provide Support Services, either in conjunction with the Idealstack Hosting System, or seperate from it.

    3. Server Management Services - Idealstack may provide management of servers, and of ‘cloud hosting platforms’ such as Amazon AWS

    4. Idealstack Software Development Services - Idealstack may provide the development of software

    5. Additional Services - You agree that the provision of any Additional Services will also be subject to these terms.

    6. Third Party Providers Products and Services - On occasion we may recommend you to purchase products and services from Third Party Providers.   Where we do so, we may receive commissions from the Third Party Providers for recommending their products or services to you.

    7. AWS Terms -  The Idealstack Hosting System also requires Clients to use a third-party service, AWS. The Client’s use of the AWS Service is subject to the AWS Terms of Service located at http://aws.amazon.com/service-terms/. The Client agrees to abide by these terms.

  2. Idealstack Services

    1. Idealstack shall make the Services available to Client pursuant to this Agreement and the terms of the relevant Order Form(s) during the applicable Term. Client understands and agrees that Client's purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Idealstack or its representatives regarding future functionality or features of the Services.

  3. Cloud Infrastructure Services and Third Party Products.

    1. Some Idealstack Services also require the user of third-party Cloud Infrastructure Services or Third Party Products.  The Client is responsible for selecting one or more Cloud Infrastructure Services or Third Party Products, and independently evaluating that they will work with Client’s needs.

    2. Client's use of a Cloud Infrastructure Service is subject to the third party provider's fees and terms and conditions. Client agrees to pay any applicable fees for the Cloud Infrastructure Services and comply with the then-current terms and conditions related to the Cloud Infrastructure Service. Client's breach of the terms and conditions regarding the Cloud Infrastructure Service will be considered a breach of this Agreement.

    3. Client's use of Third Party Products is subject to the additional terms and conditions of the third party providing such Third Party Products and may be subject to additional Fees. Client agrees to comply with all such terms and pay any applicable Fees associated with Third Party Products. For the avoidance of doubt, Client may incur Fees for Third Party Products through Client's use of a Trial Account or Subscription Account.

    4. THE CLOUD INFRASTRUCTURE SERVICE AND THIRD PARTY PRODUCTS ARE NOT IDEALSTACK PRODUCTS AND ARE NOT PART OF THE IDEALSTACK PLATFORM. IDEALSTACK IS NOT RESPONSIBLE FOR THE CLOUD INFRASTRUCTURE SERVICE OR THIRD PARTY PRODUCTS, OR FOR ANY ACTS OR OMISSIONS OF THE THIRD-PARTY PROVIDER OF THE CLOUD INFRASTRUCTURE SERVICE OR THIRD PARTY PRODUCTS. CLIENT ACKNOWLEDGES THAT THE PROVIDER OF THE CLOUD INFRASTRUCTURE SERVICE MAY IMPLEMENT PROCEDURES THAT WOULD MAKE IT DIFFICULT OR IMPOSSIBLE TO ACCESS CLIENT'S DATA OR THE RESOURCES MADE AVAILABLE VIA THE CLOUD INFRASTRUCTURE SERVICE IN CERTAIN CIRCUMSTANCES (E.G., IN THE CASE OF A VIRUS, DENIAL-OF-SERVICE, OR SIMILAR ATTACK; TRANSMISSION OR STORAGE OF INFRINGING OR ILLEGAL CONTENT; USE FOR BULK EMAIL; USE THAT COULD OR DOES HARM THE THIRD PARTY'S NETWORKS OR SERVERS OR COMPROMISE SECURITY).

 

  1. Client Obligations

    1. Account - You will be required to create an Account to access and use the Services. You are responsible for all activities occurring under your Account, regardless of whether the activities were undertaken by you, your employees, agents, contractors or any other third party having access to your Account. You

      1. must use reasonable endeavours to keep your Account password secure and prevent unauthorised access and use of the Services;

      2. must provide notice to us immediately if there is suspected access or use by an unauthorised party, or if an Account is lost, stolen or otherwise compromised;

      3. are solely responsible for all information, data and content stored on, published or accessed through the Services;

      4. are responsible for creating back-ups of its content and data used in relation to the Services; and

      5. must ensure that each person you authorise to use the Account complies with the terms and conditions set out under this Agreement.

    2. Client Keys - Client may elect to provide Idealstack access to keys, credentials, or passwords ("Keys") to access Client's applications and/or technology infrastructure. By providing Idealstack any such Keys, Client authorizes Idealstack  to use those Keys and to access Client applications and infrastructure for the purpose of providing Services under this Agreement without notice.

    3. Abusive Activities

      1. The Client may not engage in any harmful use of the Services, which includes, without limitation, use of the Services to:

        1. disseminate or transmit any material that, to a reasonable person may be grossly offensive, vulgar or malicious;

        2. attempt to mislead any person as to the identity, source or origin of any communication;

        3. interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which Client does not have authorization to access or at a level exceeding its authorization; or

        4. use Client’s server as an “open relay” or for similar purposes.

    4. Storage and Security

      1. Client is solely responsible for undertaking measures to:

        1. prevent any loss or damage to its website or server content;

        2. maintain independent archival and backup copies of its website or server content; and

        3. ensure the security, confidentiality and integrity of all its website or server content transmitted through or stored on Idealstack’s servers or the Servers and Services managed by idealstack.

        4. Client must keep its passwords secure and confidential and use multi-factor authentication with the Service.

        5. Client must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Idealstack promptly of any such unauthorized access. Idealstack servers are not an archive and Idealstack has no liability to Client or any other person for loss, damage or destruction of any of Client’s content.

    5. Compliance

      1. The Services are not designed to provide a PCI (Payment Card Industry) or HIPAA (Health Insurance Portability and Accountability Act) compliant environment and should not be used as one unless otherwise stated

    6. Website/Server Content

      1. Client is solely responsible for providing, updating, uploading and maintaining its website or server and any and all files, pages, data, works, information or materials on, within, displayed, linked or transmitted to, from or through its website or server.

      2. As part of providing technical support, it may be necessary for Idealstack’s support staff to modify, alter or remove content of Client hosted Service.

    7. Trial Accounts. Idealstack shall notify Client of limits applicable to each Trial Account at the time Client creates the Trial Account. Upon expiration or termination of the trial period associated with a Trial Account or upon written notice to Client, Client acknowledges and agrees that its access to the Trial Account, including all data and content therein, may be suspended, restricted, or limited by Idealstack. In addition, Client consents to receiving correspondence from and being contacted by Idealstack from time to time regarding Idealstack's products and services and Client's use of the Trial Account and Services. Idealstack may change the terms of the Trial Account at any time upon notice to Client. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL IDEALSTACK HAVE ANY LIABILITY TO CLIENT IN CONNECTION WITH ACCESS TO OR USE OF A TRIAL ACCOUNT.

  2. Proprietary Rights

    1. Ownership; Reservation of Rights. Subject to the limited rights expressly granted to Client hereunder, Idealstack reserves all rights, title and interest in and to the Idealstack Platform and the Services, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein.

    2. Restrictions. Client shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) reverse engineer the Services, or (iv) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services.

    3. Feedback. Idealstack shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client and Client's Authorized Users relating to the Services. Notwithstanding anything to the contrary in this Agreement, Idealstack also shall be free to use for any purpose the Residuals resulting from access to or work with the Confidential Information of Client, including but not limited to use of "residuals" in development, manufacture, marketing and maintenance of Idealstack's own products and services, provided that this use right does not and shall not represent a license to any valid patent, trade secret, or copyright of Client. The term "residuals" means Confidential Information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how, or techniques contained therein.

  3. Marketing

  1. You agree that we may:

    1. list you on our marketing materials, including on our website; and

    2. from time to time, we may send you e-mails with articles and information about our organisation and products and services that we think may be of interest to you.  You may elect not to receive such e-mails at any time by clicking the ‘unsubscribe’ link at the bottom of those e-mails or by contacting support@idealstack.io via email.

 

  1. Fees

    1. General Terms. Client must pay all fees due for Services purchased or obtained at the Site at the time its order the Services. All prices and fees are non-refundable unless otherwise expressly noted in the Refund Policy section below, even if the Services are suspended, terminated, or transferred prior to the end of the Services term. Idealstack expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications will be posted online at the Site and effective immediately without need for further notice to you. If Client has purchased or obtained Services for a period of months or years, changes or modifications in prices and fees will be effective when the applicable Services are renewed. Client IS SOLELY RESPONSIBLE FOR MAINTAINING ITS ACCOUNT SETTINGS, INCLUDING BUT NOT LIMITED TO (I) SETTING ITS RENEWAL OPTIONS AND (II) ENSURING ITS ASSOCIATED PAYMENT METHODS ARE CURRENT AND VALID

    2. Cloud Provider Fees. Your Cloud Provider will charge you for the usage of their services per your agreement with them.

    3. Currency. Transaction processing is supported only in New Zealand Dollars and United States Dollars. If the transaction is processed in a currency that differs from the currency of Client’s bank account, Client may be charged exchange rate conversion fees by its bank. Idealstack makes no representations or warranties that (i) the amount submitted to its bank for payment will be the same as the amount posted to its bank statement (in the case of an unsupported currency) and Client agrees to waive any and all claims based upon such discrepancies (including any and all claims for a refund based on the foregoing).

    4. Time and Materials. Where an Estimated Budget is given in the Terms of Reference or has been varied by virtue of clause 3(i), the Estimated Budget (whether original or as varied) is just an estimate and is dependent on the resources utilised and the time expended by us.  You will be charged for all the actual hours of work performed at our hourly rate, any direct expenses incurred, and the cost of any materials and any special equipment that may be required for the project (“Time and Materials”).

    5. Tax. Client may be charged Value Added Tax, Goods and Services Tax, or other localized fees or taxes, based on Client’s bank or the country indicated in Client’s billing address section.

    6. Refund Policy. Where refunds are issued to Client’s payment method, Idealstack’s issuance of a refund receipt is only confirmation that Idealstack has submitted the refund to the payment method charged at the time of the original sale. The payment provider or individual issuing bank associated with Client’s payment method establish and regulate the time frames for posting the refund, and that such refund posting time frames may range from 5 business days to a full billing cycle, or longer. Idealstack also has the right, but not the obligation, to offer an in-store credit for Clients seeking refunds, even if there are no limitations on refunds imposed by the payment method.

    7. AWS ISSUED CREDITS ARE FOR THE EXCLUSIVE USE OF AWS SERVICES RESOLD BY IDEALSTACK AND ARE NOT TRANSFERABLE.

  2. Term and Termination

    1. This agreement lasts for so long as there is an order for the Services. No refunds are provided.

    2. Termination by us.
      We may terminate this agreement at any time if:

      1. your use of the Services:

        1. poses a security risk to the Services or any third party;

        2. may adversely impact the Services or our systems;

        3. in our reasonable opinion, you are using the Services for any unlawful, abusive or fraudulent purpose

        4. may subject us or any third party to Liability; or

        5. may be unlawful;

      2. You are the subject of any bankruptcy, voluntary administration, receivership or liquidation, insolvency or other similar proceedings

      3. you abuse, harass or threaten (including, but not limited to, threats of abuse or retribution or using any form of cyber-bullying) verbally or in writing any of our employees, contractors, agents or officers; or

      4. you commit a material breach of these terms or any other agreement between us, when the breach is not reasonably capable of being remedied;

      5. we are no longer able to provide the Services due to the expiry or termination of any arrangement with a third party provider; or

      6. we determine, in our absolute discretion, that it is uneconomical, impractical or unfeasible to continue providing the Services.

    3. Termination 

      1. If a party materially breaches this agreement or an order and does not cure the breach after a 30-day cure period provided by the other party, then the other party may terminate this agreement and the order upon email notice to the breaching party

      2. Upon termination by Idealstack for material breach by Client, Client forfeits any unused Services.

      3. Upon expiration or termination of Services, Client must discontinue use of the Services and relinquish use of any components of the Idealstack Platform, including the Idealstack Materials (and, without limitation, the Hosting Images and Idealstack Router). Prior to termination of the Services, Client is responsible for moving its website or server content off of the infrastructure managed by the Idealstack Platform, or find an alternative way to run it without using the Idealstack Platform. Idealstack will not transfer or FTP Client’s website or server content to another provider. If Client fails to move its website or server content off of Idealstack servers prior to cancellation, then access to such content may be lost

      4. AWS Issued Credits are non-transferrable and unused credits are forfeited upon Termination.

      5. To request termination of services please email cancellation@idealstack.io or leverage the self service cancellation tool in the Idealstack Hosting System.

      6. Free Services. Upon termination of the Services, all free services provided as part of the Services will be cancelled.

  3. Limitation of Liability

    1. IN NO EVENT WILL IDEALSTACK, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO Client OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE CONTENT OF THE SITE, (II) THE CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITE, (III) THE SERVICES FOUND AT THE SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF Idealstack SERVERS OR ANY AND ALL CONTENT OR INFORMATION OR DATA STORED THEREIN, (VII) ANY INTERRUPTION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF Client’S USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT Idealstack IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL IDEALSTACK’S TOTAL LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT TO IDEALSTACK WITHIN THE 12 MONTHS PRIOR TO THE EVENT WHICH GAVE RISE TO THE CLAIM.

  4. Indemnity

    1. Client must defend, indemnify and hold harmless Idealstack and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Idealstack directly or indirectly arising from (i) Client’s use of and access to the Site or the Services found at the Site; (ii) Client’s violation of any term of this agreement or the policies or agreements which are incorporated herein; or (iii) Client’s violation of any third-party right, including without limitation any intellectual property or other proprietary right.

  5. Discontinued Services; End of life policy

    1. General. Idealstack reserves the right to cease offering or providing any of the Services at any time, for any or no reason. Although Idealstack makes great effort to maximize the lifespan of all its Services, there are times when a Service it offers will be discontinued or reach its End-of-Life (EOL).

    2. No Liability. Idealstack is not liable to Client or any third party for any modification, suspension, or discontinuance of any of the Services it may offer.

  6. Changes to the Terms

    1. Idealstack may make changes to the Terms from time to time. When these changes are made, Idealstack will make a new copy of the Terms available at http://idealstack.io/policies.

    2. You understand and agree that if you use the Service after the date on which the Terms have changed, Idealstack will treat your use as acceptance of the updated Terms.

  7. General

    1. The Terms constitute the whole legal agreement between you and Idealstack and govern your use of the Service (but excluding any services which Idealstack may provide to you under a separate written agreement), and completely replace any prior agreements between you and Idealstack in relation to the Service.

    2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

    3. You agree that Idealstack may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.

    4. We may assign our rights under this Agreement by notice to you. You will not assign this Agreement without our written consent.

    5. You agree that if Idealstack does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Idealstack has the benefit of under any applicable law), this will not be taken to be a formal waiver of Idealstack’s rights and that those rights or remedies will still be available to Idealstack.

    6. Idealstack shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

    7. These terms and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand. Notwithstanding this, you agree that Idealstack shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.