Effective January 28, 2015
1.1 Your use of the Kumolus service is governed by this agreement (the "Terms"). "Kumolus" is the wholly owned and operated cloud management service of Kumo Holdings Pty Ltd. The "Kumolus Services" means the services Kumo Holdings makes available through this website, including this website, the Kumolus cloud computing platform, the Kumolus API, the Kumolus CLI, the Kumolus Agent, the Kumolus Virtual Appliance, and any other software or services offered by Kumo Holdings Pty Ltd via ‘Kumolus’ in connection to any of those.
1.2 In order to use the Kumolus Services, you must first agree to the Terms. You agree to the Terms by actually using the Kumolus Services. You understand and agree that Kumo Holdings will treat your use of the Kumolus Services as acceptance of the Terms from that point onwards.
1.3 You agree your purchases of any Kumolus Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Kumo Holdings Pty Ltd or any of its affiliates regarding future functionality or features.
1.4 IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS OUR SERVICES THROUGH YOUR ACCOUNT TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
2.1 You must provide accurate and complete registration information. You are responsible for the security of your passwords and for any use of your account.
2.2 Your use of Kumolus Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the Kumolus Services by any means other than through the interface that is provided by Kumolus in connection with the Kumolus Services, unless you have been specifically allowed to do so in a separate agreement with Kumo Holdings, or (b) engage in any activity that interferes with or disrupts the Kumolus Services (or the servers and networks which are connected to the Service).
2.4 You may not access the Kumolus Services for the purpose of bringing an intellectual property infringement claim against Kumo Holdings or for the purpose of creating a product or service competitive with the Kumolus Services.
2.5 You may access Kumolus services via an API (Application Program Interface). Any use of the API, including use of the API through a third-party product that accesses Kumolus, is bound by these Terms of Service plus the following specific terms:
3.1 In using the Kumolus service it is your responsibility to select the one or more third party Cloud Infrastructure products for use with the services.
3.2 The third party Cloud products that operate with the Kumolus Platform are identified on Kumolus’s website and may be changed by Kumo Holdings from time to time.
3.3 Kumolus may arrange with providers of third party Cloud products to provide a single invoice to a client for access to the Kumolus Platform and the third party Cloud services. This arrangement will be indicated and agreed to by Kumo Holdings and the Client under a separate agreement. In this situation, the Client will pay Fees to Kumo Holdings for the third party Cloud services in accordance with the terms and conditions of this separate Agreement and the respective Client Order Form. Unless otherwise set forth in a separate agreement and on an individual Order Form, Kumo Holdings will not provide a single invoice to Clients and therefore the Client will be solely responsible for providing and using their own third party credentials for access to the third party Cloud services. The client is therefore responsible for all charges in connection with the operation of such third party accounts.
3.4 In the event that Kumolus makes available links to pricing information in connection with third party Cloud products or other Cloud Infrastructure Services, such links and the pricing information are provided without warranty. The client is responsible to ensure the accuracy of such information.
3.5 The client’s use of a third party Cloud Infrastructure Service is subject to the third party provider’s fees and terms and conditions.
3.6 The client’s use of Third Party Products is subject to the additional terms and conditions of the third party providing such Third Party Product. The client agrees to comply with all such terms and pay any applicable Fees associated with Third Party Products. For the avoidance of doubt, Kumo Holdings is not responsible for any third party fees associated with the client’s use of the Kumolus platform.
3.7 THE CLOUD INFRASTRUCTURE SERVICE AND THIRD PARTY PRODUCTS ARE NOT KUMOLUS PRODUCTS AND ARE NOT PART OF THE KUMOLUS PLATFORM. KUMOLUS 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.
4.1. As a Kumo Holding client you shall (a) be responsible for each authorised user’s compliance with this agreement, (b) be responsible for the accuracy, quality and legality of client data entered in or stored on the Kumolus Platform; (c) use commercially reasonable efforts to prevent unauthorised access to or use of the Services, and notify Kumo Holdings promptly of any such unauthorised access or use, and (d) use the Services only in accordance with the terms of this Agreement and all applicable laws and government regulations.
4.2 Any accounts held with Kumo Holdings for use of the Kumolus services may not be transferred or assigned to another entity without the written consent of Kumo Holdings Pty Ltd.
4.3 As a client you are responsible for creating back-ups of your data and any other content provided or used by you (the client) within the Kumolus Platform. Kumolus shall have no obligation to maintain any such content or to forward any content to you as a client or any third party.
4.4 Through the use of the Kumolus product and services you may elect to provide us with access to keys, credentials, or passwords (“Keys”) in order that access to your applications and/or third party technology infrastructure is available. By providing Kumo Holdings with any such Keys, you as the client authorises Kumolus to use those Keys and to access client applications and infrastructure for the purpose of providing Services under this Agreement.
4.5 As a Kumo Holdings client you shall not (a) make the Services available to anyone other than authorised users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Kumolus Platform or third-party data contained therein, or (e) attempt to gain unauthorised access to the Kumolus Platform or any related systems or networks.
5.2 You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with Kumolus user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Kumo Holdings.
6.1 Subject to the Terms, the Kumolus Services may be provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. During the period when Kumolus Services are offered as a Beta, trial or evaluation version, and information about limits and pricing for additional resources and services is not available at a public URL, these limits and pricing shall be agreed to in writing by the parties as per a licensing agreement, prior to the use of Kumolus Services.
6.2 For all purchased resources and services, Kumo Holding Pty Ltd will charge you on a monthly basis or at the interval indicated in the licensing agreement, agreed to in writing by both parties. Charges are exclusive of taxes. You are responsible for paying all taxes and government charges. Charges are solely based on Kumo Holding's measurements of your use of the Kumolus Services, unless otherwise agreed to in writing. All sales are final. No refunds shall be made available. Nothing in these Terms obligates Kumo Holdings to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Kumo Holdings may be shared by Kumo Holdings with companies who work on Kumo Holding’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Kumo Holdings and servicing your account. Kumo Holdings may also provide information in response to valid legal process, such as search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Kumo Holdings shall not be liable for any use or disclosure of such information by such third parties. Kumo Holdings reserves the right to discontinue the provision of the Kumolus Services to you for any late payments.
6.3 Kumo Holdings may change its fees and payment policies for the Kumolus Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Kumo Holdings may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
6.4 You are solely responsible for properly cancelling your account. Cancellation of your account will result in the following:
6.5 Kumo Holdings, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other Kumolus service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all content in your Account. Kumo Holdings reserves the right to refuse service to anyone for any reason at any time.
7.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Kumolus Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content." The term Content includes any software applications that you may run using the Kumolus cloud-computing platform and the Kumolus Services (collectively, "Applications").
7.2 Kumo Holdings reserves the right (but shall have no obligation) to remove any or all Content from the Kumolus Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a takedown request from Kumo Holdings. In the event that you elect not to comply with a request from Kumo Holdings to take down certain Content, Kumo Holdings reserves the right to directly take down such Content or to disable Applications.
7.3 In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user's account on your Application. Kumo Holdings reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
7.4 You agree that you are solely responsible for (and that Kumolus has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Kumolus Services and for the consequences of your actions (including any loss or damage which Kumolus may suffer) by doing so.
7.5 You agree that Kumo Holdings has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Kumolus Services. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
8.1 You acknowledge and agree that Kumo Holdings Pty Ltd owns all legal right, title and interest in and to the Kumolus Services, including any intellectual property rights which subsist in the Kumolus Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
8.2. Unless you have agreed otherwise in writing with Kumo Holdings, nothing in the Terms gives you a right to use any of the Kumo Holdings or Kumolus trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
8.3 Except as provided in Section 8, Kumo Holdings acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, run, transmit or display on, or through, the Kumolus Services, including any intellectual property rights which subsist in that Content and the Applications (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Kumo Holdings, you agree that you are responsible for protecting and enforcing those rights and that Kumo Holdings has no obligation to do so on your behalf.
9.1 Kumo Holdings gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Kumo Holdings as part of the Kumolus Services as provided to you by Kumolus. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Kumolus Services as provided by Kumo Holdings, in the manner permitted by the Terms.
9.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative of work, reverse engineer, decompile or otherwise attempt to extract the source code of the Kumolus Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Kumo Holdings , in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Kumolus Services or any applications running on the Kumolus Services.
9.3 Open source software licenses for components of the Kumolus Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Kumo Holdings for the use of the components of the Kumolus Services released under an open source license.
10.1 Kumo Holdings claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Kumolus Services you give Kumo Holdings a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Kumo Holdings to provide you with the Kumolus Services. Furthermore, by creating an Application through use of the Kumolus Services, you give Kumo Holdings a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such content for the sole purpose of enabling Kumo Holdings to provide you with the Kumolus Services.
10.2 You may choose to or Kumo Holdings may invite you to submit comments or ideas about the Kumolus Services, including without limitation about how to improve the Kumolus Services or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Kumo Holdings under any fiduciary or other obligation, and that Kumo Holdings is free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
10.3 You agree that Kumo Holdings, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicising your use of the Kumolus Services.
11.1 The Software which you use may automatically download and install updates from time to time from Kumo Holdings. These updates are designed to improve, enhance and further develop the Kumolus Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Kumo Holdings to deliver these to you) as part of your use of the Kumolus Service.
12.1 Kumo Holdings is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Kumolus Services which Kumo Holdings provides may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the Kumolus Services will be effective with respect to all versions of the Kumolus Services; examples of changes to the form and nature of the Kumolus Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
12.2 You may discontinue your use of the Kumolus Service at any time. You will not receive any refunds on discontinuing the service.
12.3 You agree that Kumo Holdings, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Kumolus Services may be without prior notice, and you agree that Kumo Holdings will not be liable to you or any third party for such termination.
12.4 You are solely responsible for exporting your Content and Application(s) from the Kumolus Services prior to termination of your account for any reason, provided that if Kumolus terminates your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
12.5 Upon any termination of the Kumolus Services or your account these Terms will also terminate, but Sections 6.1, 11, 12, 13, and 16 shall continue to be effective after these Terms are terminated.
13.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT KUMO HOLDING'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
13.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE KUMOLUS SERVICE IS AT YOUR SOLE RISK AND THAT THE KUMOLUS SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE."
13.3 KUMO HOLDINGS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE KUMOLUS SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KUMO HOLDINGS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE KUMOLUS SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE KUMOLUS SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE KUMOLUS SERVICES WILL BE ACCURATE.
14.1 SUBJECT TO SECTION 11.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT KUMO HOLDINGS, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
14.2 THE LIMITATIONS ON KUMO HOLDING’S LIABILITY TO YOU IN PARAGRAPH 12.1 ABOVE SHALL APPLY WHETHER OR NOT KUMO HOLDINGS HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
15.1 You agree to hold harmless and indemnify Kumo Holdings, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively "Kumo Holdings and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Kumolus Services, (c) your violation of applicable laws, rules or regulations in connection with the Kumolus Services, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and legal fees, of every kind and nature. In such a case, Kumo Holdings will provide you with written notice of such claim, suit or action.
16.1 The Kumolus Services may include hyperlinks to other web sites or content or resources or email content. Kumo Holdings may have no control over any web sites or resources which are provided by companies or persons other than Kumo Holdings.
16.2 You acknowledge and agree that Kumo Holdings is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
16.3 You acknowledge and agree that Kumo Holdings is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
17.1 Kumo Holdings may make changes to the Terms from time to time. When these changes are made, Kumo Holdings will make a new copy of the Terms available.
17.2 You understand and agree that if you use the Kumolus Services after the date on which the Terms have changed, Kumo Holdings will treat your use as acceptance of the updated Terms.
18.1 The Terms constitute the whole legal agreement between you and Kumo Holdings and govern your use of the Kumolus Services (but excluding any services which Kumo Holdings may provide to you under a separate written agreement), and completely replace any prior agreements between you and Kumo Holdings in relation to the Kumolus Services.
18.2 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.
18.3 If Kumo Holdings provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
18.4 You agree that Kumo Holdings may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Kumolus Services. By providing Kumo Holdings your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
18.5 You agree that if Kumo Holdings does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Kumo Holdings has the benefit of under any applicable law), this will not be taken to be a formal waiver of Kumo Holding's rights and that those rights or remedies will still be available to Kumo Holdings.
18.6 Kumo Holdings 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.
18.7 The Terms, and your relationship with Kumo Holdings under the Terms, shall be governed by the laws of the State of Victoria, Australia. You and Kumo Holdings agree to submit to the exclusive jurisdiction of the courts located within the county of Australia to resolve any legal matter arising from the Terms.