These proposed Terms of Service will be effective 1 December 2013
Welcome to Cloud Herd. We are an online website which seeks to
streamline transactions in relation to livestock within Australia.
This agreement describes the terms and conditions that govern your use
of our services at www.cloudherd.com.au (the "Website").
You must read, agree with and accept all of the terms and conditions
will change over time. It is Your obligation to ensure that You have read,
understood and agree to the most recent terms available on the Website.
"agent" means an agent for a vendor or for a purchaser who undertakes
all functions normally associated with an agent;
"auction" means a sale in which each stock is sold to the highest bidder
providing the bid equals or exceeds the vendor's reserve price;
"auctioneer" means the person conducting the physical component of an
"Confidential Information" includes all information exchanged between
the parties to this Agreement, whether in writing, electronically or orally,
including the Service but does not include information which is, or
becomes, publicly available other than through unauthorised disclosure by
the other party.
"Data" means any data inputted by You or with Your authority into the
Website, or data acquired via your authorisation (including your
"Intellectual Property Right" means any patent, trade mark, service
mark, copyright, moral right, right in a design, know-how and any other
intellectual or industrial property rights, anywhere in the world whether or
"person" includes a body corporate as well as a natural person;
"purchaser" includes an agent who is deemed to be purchasing as a
"sale" means a sale by auction or in the bid and offer system or by a
negotiated sale or other form of sale over the Service;
"sell" means to sell by auction or in the bid and offer system or by a
"selling agent" means the agent who lists stock in an auction on behalf of
"Service" means the services described and provided by the
www.cloudherd.com website, whether accessed directly, or through third
"Website" means the Internet site at the domain www.cloudherd.com or
any other site operated by Cloud Herd.
"User" means the registered user for the Service, and, where the context
permits, includes any entity on whose behalf that person registers to use
"You" means the Ordinary User and / or Subscriber, where the context
permits. "Your" has a corresponding meaning.
Privacy and Your Information
For information about Cloud Herd’s data protection practices, please read
personal information when you access the Website and use the Service.
Changes will be effective upon posting to the site.
Privacy and Your Information
Our services provided through Cloud Herd are available only to, and may
only be used by, individuals who can form legally binding contracts under
applicable Australian law. Additionally, our services are not available to
persons under 18 years of age or to temporarily or indefinitely suspended
members of Cloud Herd. As such, if you do not qualify, please do not use
Cloud Herd account (including feedback) and User ID may not be
transferred or sold to another party.
Cloud Herd is Not an Auctioneer
Cloud Herd is not a traditional "auctioneer" website. Our website simply
acts as a service to allow members to offer, sell, and buy livestock in a
variety of formats, including a fixed price format and an auction-style
format commonly referred to as an "online auction". We are not involved in
the actual livestock transaction between buyers and sellers, rather our
service allows for the facilitation of buyers and sellers in relation to
As a result, we have no control over the quality, safety or legality of the
livestock or content posted by users on the Website, the truth or accuracy
of the stock listings, the ability of sellers to sell items or the ability of
buyers to buy items. We cannot ensure and do not guarantee that a buyer
or seller will actually complete a transaction or act lawfully in using our
Cloud Herd cannot and does not confirm each user's purported identity.
Cloud Herd will use reasonable industry standards in relation to detecting
and policing fraud on the Site.
We cannot ensure and do not guarantee that a buyer or seller will actually
complete a transaction or act lawfully in using our Site. As such due to the
nature of the livestock which can experience loss of condition and injury,
we recommend buyers to visit the property, request for time stamped
pictures and obtain insurance. In the case of a dispute, Cloud Herd can
arrange a third party to inspect the livestock for a fee.
Based on the above scope, in the event that you have a dispute with one
or more users, you release and hold Cloud Herd harmless (and our
officers, directors, agents, affiliates, parents, subsidiaries and employees)
from claims, demands and damages (actual, special, direct, indirect and
consequential) of every kind and nature, known and unknown, arising out
of or in any way connected with such disputes.
We send you communications and notices regarding your transactions and
your account on our Website. These communications do not represent,
guarantee your transactions. It is you responsibility to complete all
transactions you participate in and to ensure your satisfaction of all
applicable legal requirements. We do not control, endorse or approve the
items, information or content provided by other users which is made
available through our system. You may find other users' information to be
inaccurate, or deceptive. Please use caution, common sense, and practice
safe trading when using our Website.
Bidding and Buying
You are obligated to complete the transaction with the seller if you
purchase an item through one of our fixed price formats or are the highest
bidder as described below, unless the transaction is prohibited by law or
this User Agreement. If you are the highest bidder at the end of an auction
(meeting the applicable minimum bid or reserve requirements) and your
bid is accepted by the seller, you are obligated to complete the transaction
with the seller, unless the transaction is prohibited by law or by this
By bidding on an item you agree to be bound by the conditions of sale
included in the item's description so long as those conditions of sale are
not in violation of this Agreement or unlawful. Bids are not retractable
except in exceptional circumstances such as when the seller materially
changes the item's description after you bid, a clear typographical error is
made, or you cannot authenticate the seller's identity.
As all transactions occur on a third party payment provider, no credit card
details are stored on the website. As such Cloud Herd has no
responsibility to the recovery of any transactions including fraudulent and
Listing and Selling
You must be legally able to sell the item(s) you list for sale on our Website.
All listed items must be listed in an appropriate stock category.
If you receive at least one bid at or above your stated minimum price (or in
the case of reserve auctions, at or above the reserve price), you are
obligated to complete and finalise the transaction with the highest bidder
upon the item's completion, unless there is an exceptional circumstance,
a. the buyer fails to meet the terms of your listing (such as payment
b. you cannot authenticate the buyer's identity.
Without limiting any other remedies available to Cloud Herd at law, in
equity or under this Agreement, Cloud Herd may, in its sole discretion,
suspend or terminate your account if we suspect that you (by conviction,
settlement, insurance or escrow investigation, or otherwise in our sole
discretion) have engaged in fraudulent activity in connection with our
Neither you, nor any other bidders or sellers may manipulate the price of
any item, nor may you interfere with other users' items listed for sale.
Payment Services and Account Information
As you know, all transactions agreed and finalized between you and
another User are entirely at the exclusion of Cloud Herd. In addition to this,
Cloud Herd does not collect or interact with any of Your financial
information (including but not limited to your credit card details) but offers
to its Users its preferred third party payment partner that can finalise the
financial aspects of your transaction that has been agreed over the
You shall be given the opportunity to opt-out of using Cloud Herd’s
preferred payment partner and choose to select another at your discretion.
To avoid all doubt, You hereby indemnify and hold Cloud Herd harmless
from any claim, action or other liability that may arise directly or indirectly
from your interaction with a third party payment provider or any third
party’s action with such payment provider
Cloud Herd makes no effort to review any user’s financial information or
credit card details for any purpose, including but not limited to accuracy,
legality or non-infringement. Cloud Herd is not responsible for the products
and services offered by or on third-party sites.
Cloud Herd cannot always foresee or anticipate and therefore shall not be
liable in respect of any technical or other difficulties which may result in
failure to obtain data or loss of data, personalization settings or other
service interruptions. Cloud Herd does not assume any responsibility for
the timeliness, accuracy, deletion, non-delivery or failure to store any user
data, communications or personalisation settings.
Third Party Links and Offers
Some parts of the Service are supported by sponsored links from
advertisers and display offers that may be custom matched to you based
on information stored in the Service, queries made through the Service or
other information. We will always disclose when an offer is sponsored.
Such information is provided by the Service 'as is', without express or
implied warranty. The inclusion of any link does not imply that we endorse
the linked site. You use the information and links at your own risk. We do
not endorse, warrant or guarantee the products or services available
through the offers provided by the Cloud Herd website. We do not
guarantee nor represent that offers (or any other third-party products or
services advertised on or linked from our site) are actually the terms that
may be offered to you if you pursue the offer or that they are the best
terms, or lowest rates available. Cloud Herd is in no way party to and will
not be liable for enforcing any agreement made between you and any third
All third party products and/or services including names, services,
company names and logos mentioned on the Website are trademarks of
their respective owners, which are in no way associated or affiliated with
Cloud Herd. These trademarks, services, processes or other information,
by trade name, trademark, service provider, supplier or otherwise does not
constitute or imply endorsement, sponsorship or recommendation thereof
by Cloud Herd.
Your Registration Information
You agree and understand that you are responsible for maintaining the
security and confidentiality of your password, which, together with your
Login ID email address, allows you to access the Service. That Login ID
and password, together with any other information you provide at signup
form your “Registration Information.”
By providing us with your email address, you agree to receive all required
notices electronically, to that email address. It is your responsibility to
update or change that address, as appropriate. Notices will be provided in
HTML (or, if your system does not support HTML, in plain-text) in the text
of the e-mail or through a link to the appropriate page on our site,
accessible through any standard, commercially available internet browser.
If you become aware of any unauthorized use of your Registration
Information, you agree to notify Cloud Herd immediately.
Your Use of The Service
Your right to access and use Cloud Herd and the Service is personal to
you and is not transferable by you to any other person or entity. You must
access and use Cloud Herd, the Website and the Service for lawful
purposes and in accordance with these Terms and Conditions.
Accurate records enable Cloud Herd to provide the highest level of service
to you. You must provide true, accurate, current and complete information
about your accounts maintained at other web sites, as requested in our
“add account” setup forms, and you must not misrepresent your
Registration Information. In order for the Service to function effectively,
you must also keep your Registration Information up to date and accurate.
If you do not do this, the accuracy and effectiveness of the Service to you
will be affected.
Your access and use of Cloud Herd may be interrupted from time to time
for any of several reasons, including, without limitation, the malfunction of
equipment, periodic updating, maintenance or repair of Cloud Herd or
other actions that we elect to take.
You also agree that Cloud Herd may use your feedback, suggestions, or
ideas in any way, including in future modifications of the Service, other
products or services, advertising or marketing materials. You grant Cloud
Herd a perpetual, worldwide, fully transferable, sublicensable, irrevocable,
fully paid-up, royalty free license to use the feedback you provide to Cloud
Herd in any way. We will not sell, publish or share your feedback in a way
that could identify you without your explicit permission.
Cloud Herd reserves the right to discontinue or cancel your registration, at
our sole discretion and without notice including but not limited to the
following reasons: (a) breach of any applicable law or breach of any of the
Terms and Conditions; (b) where we conclude that your conduct impacts
on our name or reputation; or(c) where we conclude that your conduct
violates our rights or those of another party.
You acknowledge that Cloud Herd may, in our sole discretion and without
notice, vary, modify or discontinue, temporarily or permanently, any or all
of the Website and/or the Service and you agree we are not liable to you
or any third party for such variation, modification or discontinuance.
Use of Cloud Herd with other devices
Use of these Service may be available through a compatible mobile
device, Internet and/or network access and may require software. You
agree that you are solely responsible for these requirements, including any
applicable changes, updates and fees as well as the terms of your
agreement with your mobile device and telecommunications provider.
Online, Email, and Mobile Alerts
Cloud Herd may from time to time provide automatic alerts and voluntary
account-related alerts. Automatic alerts may be sent to you following
certain changes made online to your Cloud Herd account, such as a
change in your Registration Information.
These alerts provide you with alert messages for your accounts. Cloud
Herd may add new alerts from time to time, or cease to provide certain
alerts at any time upon its sole discretion. Each alert has different options
available, and you may be asked to select from among these options
within your user settings.
Electronic alerts will be sent to the email address you have provided as
your primary email address for Cloud Herd. If your email address or your
mobile device’s email address changes, you are responsible for informing
us of that change.
Because alerts are not encrypted, we will never include your unique third-
party identification information. However, alerts may include your Cloud
Herd Login ID and transaction and other information about your accounts,
depending upon which alerts you select.
Rights You Grant Us
By submitting information, data, passwords, usernames, passcodes, other
log-in information, materials and other content to Cloud Herd through the
Service, you are licensing that content to Cloud Herd solely for the
purpose of providing the Service. Cloud Herd may use and store the
content, but only to provide the Service to you. By submitting this content
to Cloud Herd, you represent that you are entitled to submit it to Cloud
Herd for use for this purpose, without any obligation by Cloud Herd to pay
any fees or other limitations.
By using the Service, you expressly authorise Cloud Herd to access your
Account Information maintained by identified third parties, on your behalf
as your agent. When you use the “Add Accounts” feature of the Service,
you will be directly connected to the website for the third party you have
Intellectual Property Rights
All intellectual property in relation to the Website, the Service and the
content on the Website (including the software, design, text, data, icons,
logos, copyrights, designs, trade marks, concepts sound recordings and
graphics comprised in the Website) (“Intellectual Property”) belongs to
Cloud Herd or its licensors, advertisers or affiliates.
Cloud Herd retains all right, title, and interest in and to the Website and all
related content and Intellectual Property, and nothing you do on or in
relation to the Website, or any of the related content will transfer any
rights, in intellectual property or otherwise, to you, or license to you any
such rights unless expressly stated otherwise.
You agree not to do anything that interferes with or breaches the
intellectual property rights in the content. You agree not to copy, modify,
create a derivative work, reverse engineer, reverse assemble, attempt to
discover the source code, sell, assign, sub-license, grant a security
interest in or otherwise transfer any content on the Website.
You may download and view content or print a copy of material on the
Website for personal, non-commercial use, provided that you do not
modify the content in any way (including any copyright notice).
The contents of Cloud Herd belong or are licensed to Cloud Herd or its
software or content suppliers. Cloud Herd grants you the right to view and
use www.cloudherd.com subject to these terms. You may download or
print a copy of information provided on www.cloudherd.com for your
personal, internal and non-commercial use only. Any distribution, reprint or
electronic reproduction of any content from Cloud Herd in whole or in part
for any other purpose is expressly prohibited without our prior written
Access To The Interface
You agree that you will not:
Use any robot, spider, scraper, deep link or other similar automated
data gathering or extraction tools, program, algorithm or methodology
to access, acquire, copy or monitor Cloud Herd or any portion of Cloud
Herd or the Service, without Cloud Herd’s express written consent,
which may be withheld in Cloud Herd’s sole discretion;
interfere with the computer systems which support the Website;
overload a service; engage in a denial-of-service attack; or attempt to
disable a host;
collect or store personal data about other users of the Website;
impersonate or falsely represent your association with any person or
Use or attempt to use any engine, software, tool, agent, or other device
or mechanism (including without limitation browsers, spiders, robots,
avatars or intelligent agents) to navigate or search Cloud Herd, other
than the search engines and search agents available through the
Service and other than generally available third-party web browsers
(such as Microsoft Explorer);
post, communicate or transmit or use any material of any kind for
commercial purposes, or which contains any promotional material or
advertising, or any other forms of unsanctioned solicitation, including
without limitation junk mail, spam, chain letters, or unsolicited mass
distribution of email;
delete, circumvent or alter any author attribution, legal notices, rights
management information or technological protection measures;
Post or transmit any file which contains viruses, worms, Trojan horses
or any other contaminating or destructive features, or that otherwise
interfere with the proper working of Cloud Herd or the Service; or
Attempt to decipher, decompile, disassemble, or reverse-engineer any
of the software comprising or in any way making up a part of Cloud
Herd or the Service.
Furthermore, Cloud Herd does not warrant that functions contained in the
Website and Service, such as hyperlinks, will be uninterrupted or error
free, that defects will be corrected or that Cloud Herd or our hosting
server, are free of viruses or bugs.
Social Media Connections
Cloud Herd may provide experiences on social media platforms such as
Facebook®, Twitter® and LinkedIn® that enable online sharing and
collaboration among users who have registered to use them. Any content
you post, such as pictures, information, opinions, or any Personal
Information that you make available to other participants on these social
Please refer to those social media platforms to better understand your
rights and obligations with regard to such content as Cloud Herd bears no
obligations in respect of such information posted on such websites.
Limitation of Liability
To the fullest extent permitted by law, in no event shall Cloud Herd, its
officers, directors, employees, or agents, be liable to you for any direct,
indirect, incidental, special, punitive, losses or expenses or consequential
damages whatsoever resulting from any (i) errors, mistakes, or
inaccuracies of content, (ii) personal injury or property damage, of any
nature whatsoever, resulting from your access to and use of our services,
(iii) any unauthorised access to or use of our secure servers and/or any
and all personal information and/or financial information stored therein, (iv)
any interruption or cessation of transmission to or from our services, (iv)
any bugs, viruses, trojan horses, or the like, which may be transmitted to
or through our services by any third party, and/or (v) any errors or
omissions in any content or for any loss or damage of any kind incurred as
a result of your use of any content posted, emailed, transmitted, or
otherwise made available via the services, whether based on warranty,
contract, tort, or any other legal theory, and whether or not the company is
advised of the possibility of such damages.
We understand that, in some jurisdictions, warranties, disclaimers and
conditions may apply that cannot be legally excluded, if that is true in your
jurisdiction, then to the extent permitted by law, Cloud Herd limits its
liability for any claims under those warranties or conditions to either
supplying you the services again (or the cost of supplying you the services
You specifically acknowledge that Cloud Herd shall not be liable for
content or the defamatory, offensive, or illegal conduct of any third party
and that the risk of harm or damage from the foregoing rests entirely with
The Service is controlled and offered by Cloud Herd from its facilities and
makes no representations that the Service is appropriate or available for in
any locations. Those who access or use the Service from other
jurisdictions do so at their own volition and are responsible for compliance
with local law.
To the extent permitted by applicable law, you agree to defend, indemnify
and hold harmless Cloud Herd, its parent corporation, officers, directors,
employees and agents, from and against any and all claims, damages,
obligations, losses, liabilities, costs or debt, and expenses (including but
not limited to attorney's fees) arising from: (i) your use of and access to the
Service; (ii) your violation of any term of these Terms; (iii) your violation of
any third party right, including without limitation any copyright, property, or
privacy right; or (iv) any claim that your Content caused damage to a third
party. This defence and indemnification obligation will survive these Terms
and your use of the Service.
Ability to Accept this Agreement
You affirm that you are either more than 18 years of age, or an
emancipated minor, or possess legal parental or guardian consent, and
are fully able and competent to enter into the terms, conditions,
obligations, affirmations, representations, and warranties set forth in these
Terms, and to abide by and comply with these Terms.
We provide these Terms with our Service so that you know what terms
apply to your use. You acknowledge that we have given you a reasonable
opportunity to review these Terms and that you have agreed to them.
These Terms, and any rights and licenses granted hereunder, may not be
transferred or assigned by you, but may be assigned by Cloud Herd
You agree that: (i) These Terms and Conditions are governed by the laws
of the New South Wales, Australia, and you irrevocably submit to the
exclusive jurisdiction of the courts of the State of New South Wales; and
(ii) the Service shall be deemed a passive website that does not give rise
to personal jurisdiction over Cloud Herd, either specific or general, in
jurisdictions other than New South Wales, Australia.
published by Cloud Herd on the Service, shall constitute the entire
agreement between you and Cloud Herd concerning the Service. If it turns
out that a particular term is not enforceable, this will not affect any other
terms. No waiver of any term of this Terms shall be deemed a further or
continuing waiver of such term or any other term, and Cloud Herd's failure
to assert any right or provision under these Terms shall not constitute a
waiver of such right or provision.
You and Terms agree that any cause of action arising out of or related to
the services must commence within one (1) year after the cause of action
accrues. Otherwise, such cause of action is permanently barred. These
you in relation to the Website and the Service and your use of the same
supersedes all other (prior or contemporaneous) communications or
displays whether electronic, oral, or written, between us and you in relation
to the Website.
termination or expiry of these Terms and Conditions, will survive
cancellation of your registration or termination of the Services. If any of
struck out and the remaining terms will remain in force.