Posted: 04 April 2022
Effective: 04 April 2022
You can see your previous Terms here.
COCOON DATA END USER SERVICE AGREEMENT (“Agreement”)
- Your Data & Associated Permissions
When you use our Services, you provide us with data like your files, content, plans, contracts and so on (“Your Data”). Your Data is yours. These Terms do not give us any rights to Your Data except for the limited rights that enable us to offer the Services.
On accepting this Agreement, you give us permission to do a number of functions including, but not limited to actions such as hosting Your Data, backing it up and sharing it when you ask us to. Our Services also provide you with features such as commenting, sharing, searching, image thumbnails, document previews, geo-fencing, time and date controls and much more. You give us permission to do those things, and this permission extends to our affiliates and trusted third parties we work with. Cocoon Data does not have access to Your Data in an unencrypted state. Cocoon Data’s Administrators cannot provision access for themselves with regard to Your Data. Your Data will reside within our service in the region you nominate when signing up for the service.
- Your Responsibilities
Your use of our Services must comply with our Acceptable Use Policy. Content in the Services may be protected by others’ intellectual property rights. Please do not copy, upload, download or share content unless you have the right to do so.
Cocoon Data may review your conduct and content for compliance with these Terms and our Acceptable Use Policy. We are not responsible for the content people share via the Services.
Help us keep Your Data protected. Safeguard your password to the Services and keep your account information current. Do not share your account credentials or give others access to your account.
You may use our Services only as permitted by applicable law, including export control laws and regulations. Finally, to use our Services, you must be at least 13 years old (or older, depending on where you live).
- Licence Grant
As long as you comply with these Terms, we give you a limited, non-exclusive, non-transferable, revocable, personal, worldwide licence to use the Services up to the number of subscriptions purchased and in accordance with the licence model(s) purchased, solely to access the Services. To the extent any component of the Services may be offered under an open-source licence, we will make that licence available to you and the provisions of that licence may expressly override some of these Terms.
Updates to the Services are managed by Cocoon Data. You shall use the then-current version of the Services, including any updates, as made available by Cocoon Data. To the extent that your affiliates use the Services, you warrant that you have the authority to bind those affiliates and will be liable to Cocoon Data in the event any affiliate fails to comply with this Agreement.
- Licence Restriction
Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services, attempt to do so or assist anyone to do so.
Except to the extent permitted by applicable law, you must not, and must not allow any third party to:
- modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or Cocoon Data’s technology;
- knowingly or negligently access or use the Services in a manner that abuses or disrupts the Cocoon Data networks, security systems, user accounts, or Services of Cocoon Data or any third party, or attempt to gain unauthorised access to any of the Services through unauthorised means;
- transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise unlawful;
- market, offer to sell, and/or resell the Services (noting that this clause is not intended to prevent you from using the Services in support of your proprietary service offering(s));
- if you are a Cocoon Data competitor for the relevant Services, use the Services directly or indirectly for competitive benchmarking or other competitive analysis, unless permitted under applicable law;
- transfer or sublicense the Services to an affiliate or any third party;
- use the Software in conflict with requirements specified in the Acceptable Use Policy and/or the applicable Order;
- remove any copyright or other proprietary notices on or in any copies of the Services;
- violate or circumvent any technological restrictions within the Services or specified in this Agreement, such as via software or services.
- upload any Personal Heath Information (as governed by the Privacy Act 1988) (PHI) to a Service not designated by Cocoon Data as suitable for PHI.
- Violations of Licence Restrictions
If you become aware or receive a notice from Cocoon Data that any of Your Data violates this Agreement or our Acceptable Use Policy, you must take immediate action to remove the applicable part of Your Data or to suspend the relevant user/s access to the Services, as applicable. If you fail to comply with such request, Cocoon Data may suspend the Services pursuant to Clause 10 of these Terms.
- Microsoft Office 365 Integration
Refer to your license terms for Microsoft Office 365 software for when using in Cocoon Data. You may use a copy of the Microsoft Office 365 Cocoon Data integration supplement with each validly licensed copy of the software. You may not use the supplement if you do not have a license for the software.
- Our Intellectual Property
The Services are protected by copyright, trademark, and other US and foreign laws. Except for the limited use rights expressly granted herein, these Terms do not grant you any right, title or interest in the Services, others’ content in the Services, Cocoon Data trademarks, logos and other brand features.
We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported using our Copyright Policy. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:
Cocoon Data Holdings Pty Limited
Suite 3 Level 19 Chifley Tower, 2 Chifley Square, Sydney, NSW 2000 Australia
- Orders, Billing, Subscriptions
Orders. You may order Services using the Cocoon Data ordering processes. You are responsible for all fees and taxes on orders.
Billing. Payment is due for the Service for the term purchased, including any renewals, pursuant to the payment schedule of the applicable license model.
Subscriptions. A subscription commences with a free trial, you will have the right to cancel the subscription prior to the end of the trial or period. If we do not provide you with an online cancellation mechanism, then you may exercise this cancellation right by contacting us at email@example.com. We will email you prior to the end of the free trial to remind you that the trial or period is coming to an end, and to give you an opportunity to cancel before the commencement of the paid period. If you do not cancel, we will bill you at the end of the free trial, and your subsequent cancellation rights will be in accordance with the terms specific to the subscription.
You can increase your user subscriptions to specified end users based on a unique E-mail ID that provides the user identified by the unique E-mail ID access to the Services. We will automatically bill you from the date the new user is authenticated by the Services. You will be billed monthly and your bill is calculated daily on pro-rata basis for new User’s. You’re responsible for all applicable taxes, and we’ll charge tax when required to do so.
Some countries have mandatory local laws regarding your cancellation rights, and these Terms do not override these laws. Your cancellation rights, and the mechanism via which you may notify us of your decision to cancel, will be disclosed to you at or prior to the time at which you purchase a subscription. You can cancel the Services at any time or delete users from the Services. Refunds are only issued if required by law. For example, users living in the European Union have the right to cancel their subscriptions within 14 days of signing up for, upgrading to or renewing a subscription.
Refunds All purchases are final, with no right to a refund, except as expressly provided under these Terms. Cocoon Data reserves the right, in its discretion, to suspend or terminate the Services or any portion thereof for non-payment of fees.
Your Billing Details All customer information provided by or on your behalf for a subscription must be current, complete and accurate, and you are responsible for keeping such information updated.
Changes. We may change the fees in effect but will give you advance notice of these changes via a message to the email address associated with your account.
- Term & Termination
Term These Terms shall apply for the period of Services set forth under accepted orders, including any renewals.
Termination You are free to stop using our Services at any time. We reserve the right to suspend or terminate your access to the Services with notice to you if:
(a) you are in breach of these Terms,
(b) your use of the Services in a manner that would cause a real risk of harm or loss to us or other users, or
(c) your payment method continues to decline after multiple attempts and is outstanding for a period of 90 days or longer.
We will provide you with reasonable advance written notice via the email address associated with your account to remedy the activity that prompted us to contact you. This will give you sufficient opportunity to export Your Data from our Services. If after 30 days of written notice you fail to take the steps we ask of you, we will terminate or suspend your access to the Services.
We will not provide notice before termination where:
(a) you are in material breach of these Terms,
(b) doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or
(c) we are prohibited from doing so by law.
Either party may immediately terminate the Agreement if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. Cocoon Data may immediately terminate the Agreement if you breach the Acceptable Use Policy
Effect of Termination. Upon termination, you will immediately discontinue all access and use of the Services. Cocoon Data will not be liable for any damages resulting from termination, including without limitation unavailability of Your Data arising therefrom.
- Discontinuation of Services
We may decide to discontinue the Services in response to unforeseen circumstances beyond Cocoon Data’s control or to comply with a legal requirement. If we do so, we will give you reasonable prior notice so that you can export Your Data from our systems. If we discontinue the Services in this way before the end of any fixed or minimum term you have paid us for, we will refund the portion of the fees you have pre-paid but have not received Services for.
- Services “AS IS”
We strive to provide great Services, but there are certain things that we cannot guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, Cocoon Data AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED “AS IS”. WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some places do not allow the disclaimers in this paragraph, so they may not apply to you.
- Australian Consumers covered by the Australian Consumer Law
If you a consumer under the Australian Consumer Law, our Services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Services repaired or replaced if the Services fail to be of acceptable quality and the failure does not amount to a major failure. Notwithstanding any other provision of these Terms and to the extent permitted by applicable law, Cocoon Data’s liability arising from or in relation to a claim under or a breach of any warranty or statutory guarantee that cannot be excluded will be limited, at Cocoon Data’s option: (i) to the supplying of the Services again; or (ii) the payment of the cost of having the Services supplied again.
- Limitation of Liability
WE DO NOT EXCLUDE OR LIMIT OUR LIABILITY TO YOU WHERE IT WOULD BE ILLEGAL TO DO SO – THIS INCLUDES ANY LIABILITY FOR Cocoon Data’s OR ITS AFFILIATES’ FRAUD OR FRAUDULENT MISREPRESENTATION IN PROVIDING THE SERVICES. IN COUNTRIES WHERE THE FOLLOWING TYPES OF EXCLUSION ARE NOT ALLOWED, WE ARE RESPONSIBLE TO YOU ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF OUR FAILURE TO USE REASONABLE CARE AND SKILL OR OUR BREACH OF OUR CONTRACT WITH YOU. THIS PARAGRAPH DOES NOT AFFECT CONSUMER RIGHTS THAT CANNOT BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.
IN COUNTRIES WHERE EXCLUSIONS OR LIMITATIONS OF LIABILITY ARE ALLOWED, Cocoon Data, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL NOT BE LIABLE FOR:
- ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR
- ANY LOSS OF USE, DATA, BUSINESS OR PROFITS, REGARDLESS OF LEGAL THEORY.
THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT Cocoon Data OR ANY OF ITS AFFILIATES HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU USE THE SERVICES FOR ANY COMMERCIAL, BUSINESS OR RE-SALE PURPOSE, Cocoon Data, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS OPPORTUNITY. Cocoon Data AND ITS AFFILIATES AREN’T RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USERS OF THE SERVICES.
OTHER THAN FOR THE TYPES OF LIABILITY WE CANNOT LIMIT BY LAW (AS DESCRIBED IN THIS SECTION), WE LIMIT OUR LIABILITY TO YOU TO THE GREATER OF $20 USD OR 100% OF ANY AMOUNT YOU HAVE PAID UNDER YOUR CURRENT SUBSCRIPTION WITH Cocoon Data.
- Resolving Disputes
We want to address your concerns without needing a formal legal case. Before filing a claim against Cocoon Data, you agree to try to resolve the dispute informally by contacting us at firstname.lastname@example.org. We will try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 45 days of submission, you or Cocoon Data may bring a formal proceeding.
Judicial Forum for Disputes. Subject to Clause 16 and 17 below, You and Cocoon Data agree that any judicial proceeding to resolve claims relating to these Terms or the Services will be brought in the State of New South Wales, Australia subject to the mandatory arbitration provisions below. Both you and Cocoon Data consent to venue and personal jurisdiction in such courts. If you reside in a country (for example, a member state of the European Union) with laws that give consumers the right to bring disputes in their local courts, this paragraph doesn’t affect those requirements.
- US Resident Arbitration
If you are a US Resident, you also agree to the following mandatory arbitration provisions:
We both agree to arbitrate. You and Cocoon Data agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under ‘Exceptions to agreement to arbitrate’ below. This includes disputes arising out of or relating to interpretation or application of this ‘Mandatory arbitration provisions’ section, including its enforceability, revocability or validity.
Opt-out of agreement to arbitrate. You can decline this agreement to arbitrate by clicking here and submitting an opt-out email within 30 days of first registering your account. However, if you agreed to a previous version of these Terms that allowed you to opt out of arbitration, your previous choice to opt out or not opt out remains binding.
Arbitration procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, in Denver (CO) or in any other location we agree to.
Arbitration fees and incentives. The AAA rules will govern payment of all arbitration fees. Cocoon Data will pay all arbitration fees for individual arbitration for claims less than $75,000. If you receive an arbitration award that is more favourable than any offer we make to resolve the claim, we will pay you $1,000 in addition to the award. Cocoon Data will not seek its legal fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to agreement to arbitrate. Either you or Cocoon Data may assert claims, if they qualify, in a small claims court in Denver (CO) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorised use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Denver, Colorado, USA to resolve your claim.
No Class actions You may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed. If this specific paragraph is held unenforceable, the entirety of this ‘Mandatory arbitration provisions’ section will be deemed void.
- Controlling Law
If the address you have provided to us for billing purposes is domiciled in the United States of America, then these Terms will be governed by the laws in force in the state in which that address is found.
Otherwise, and if the address provided to us for billing purposes is outside the United States of America, then these Terms will be governed by New South Wales, Australia law except for its conflicts of laws principles.
Notwithstanding the above, we recognise that some countries (including those in the European Union) have laws that require agreements to be governed by the local laws of the consumer’s country. This paragraph does not override those laws.
- Entire Agreement
These Terms constitute the entire agreement between you and Cocoon Data with respect to the subject matter of these Terms and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third-party beneficiary rights.
- Waiver, Severability & Assignment
Cocoon Data’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found to be unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. Cocoon Data may assign its rights to any of its affiliates or subsidiaries, or to any successor in the interest of any business associated with the Services.
We may revise these Terms from time to time to better reflect:
(a) changes to the law,
(b) new regulatory requirements, or
(c) improvements or enhancements made to our Services.
If an update affects your use of the Services or your legal rights as a user of our Services, we will notify you prior to the update’s effective date by sending an email to the email address associated with your account or via an in-product notification. These updated terms will be effective no less than 30 days from when we notify you.
If you do not agree to the updates we make, please cancel your account before they become effective. Where applicable, we will offer you a pro rata refund based on the amounts you have prepaid for Services and your account cancellation date. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Terms.