These Kubo Labs terms of service (the "Agreement") are entered into by Kubomatic, a French simplified joint stock company (société par actions simplifiée), having its registered office at 12, Rue des Boers - 80080 AMIENS, registered under No 894 547 439 with the Amiens Trade and Companies Register ("Company") and the entity or person agreeing to these terms ("Customer") and govern Customer's purchase of, access to and use of the Services, or, as the case may be, the Free-Trial Services.
This Agreement is effective when Customer clicks to accept it (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that (i) you have full right, power and legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.
This Agreement sets forth the terms pursuant to which Customer may access and use (i) Kubo Labs’ hosted Services in connection with one or more Order Forms or Freemium Services or, (ii) as the case may be, the Free-Trial Services. Subject to the terms of an Order Form (except for Free-Trial Services or Freemium Services), such Services or Free-Trial Services will Process data, excluding any application specific data, generated by Customer’s Kubernetes cluster(s) (collectively, but exclusive of the Services and Free-Trial Services, “Customer’s Cluster”), in order to help Customers analyse, setup, manage and supervise Customer’s Cluster.
Kubo Labs may modify this Agreement from time to time, subject to the provisions of Section 15.4 below.
Except as otherwise expressly defined in the Agreement or in an applicable Order Form, capitalized terms used herein shall have the meaning ascribed to them in this Section 1.
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services or Free-Trial Services.
“Account Data” means information about Customer that Customer provides to Company in connection with the creation or administration of its Kubo Labs Account, such as first and last name, user name and email address of an Authorized User or Customer’s billing contact. Customer shall ensure that all Account Data is current and accurate at all times during the term of the Agreement.
"Authorized User" means each of the individuals, including, as the case may be, individuals acting on behalf of a legal entity, authorized by the Customer to use the Services, or the Free-Trial Services, pursuant to (i) as to the Services (other than Freemium Services), the Order Form, and (ii) as to the Services and the Free-Trial Services the other terms and conditions of this Agreement.
"Company Materials" means the Service Software, Specifications, Documentation and Company Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software, applications, other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, in each case including any improvements or modifications thereof, that are provided or used by Company or any Subcontractor in connection with the Services or the Free-Trial Services or otherwise comprise or relate to the Services, the Free-Trial Services or Company Systems. For the avoidance of doubt, Company Materials include Resultant Data and any information, data or other content derived from Company's monitoring of Customer's access to or use of the Services or Free-Trial Services, but do not include Customer Data.
"Company Personnel" means all employees, agents or independent contractors of Company or any Subcontractor.
"Company Systems" means the information technology infrastructure used by or on behalf of Company in performing the Services or the Free-Trial Services, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Company or through the use of third-party services.
“Customer Data” means data from Customer’s Cluster(s) that are submitted or retrieved for Processing by the Services or the Free-Trial Services.
"Customer Systems" means the Customer's information technology infrastructure, including Company’s Cluster(s), computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Documentation" means Company then current on-line help, manuals et al. made available by Company for the Services or the Free-Trial Services, including any update thereof.
"Free-Trial Activation Date" means the first day the Free-Trial Services are activated for Customer’s use.
"Free-Trial Period" means the duration of permitted use of the Free-Trial Services, starting on the Free-Trial Activation Date and ending on the earlier of (i) the end of a period of fourteen (14) days thereafter, or such other period as mutually agreed by the parties, unless terminated early in accordance with this Agreement, or (ii) the date of an Order Form, but solely as to the Services provided in such Order Form.
"Free-Trial Services" means free of charge access to (a) to any Services or sub-set of Services made available by Company to Customer free of charge and (b) any alpha, beta or other pre-commercial releases of a Company product or service (or feature of functionality of a product or service) made available by Company to Customer.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services, the Free-Trial Services or Company Systems as intended by this Agreement.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Order Form" means the ordering documents (Devis) for Customer purchases from Company that are executed hereunder by Customer and Company from time to time. All Order Forms shall be deemed incorporated herein.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Process” means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organize, structure, store or adapt; “Processing” has a correlative meaning.
"Resultant Data" means information, data and other content that is derived by or through the Services or the Free-Trial Services from Processing Usage Data, Account Data or Customer Data and is sufficiently different from such data that such data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
"Services" means the particular service features and offerings made available to Customer by Company based on an Order Form or the applicable subscription chosen by Customer (including Freemium Services) whether online at www.kubolabs.io or through any other mean made available by Company, among the following:
- KuboScore is a web based application running a health assessment of Customer’s Kubernetes cluster by running multiple tests on such cluster.
KuboScore will issue a free and simplified quality assessment report upon Customer’s request and/or one (1) payable premium report sent to Customer by email.
KuboScore only retrieves and analyzes data related to the health and behavior of your cluster (metrics, status...). It does not access application specific data.
Kubo Labs makes available to Customers a “freemium” version of KuboScore where Customers can access for free to simplified quality assessment reports mentioned above (the “Freemium Service”).
- KuboSetup is a web based application setting up a Kubernetes cluster that follows best practices and security requirements on the Customer’s cloud environment.
KuboSetup uses and creates private keys and kubefonfig files during setup but does not store them after the installation is completed.
- KuboVisor is a web based application highlighting key health indicators, issues and bad practices on all Customer’s Clusters.
KuboVisor only retrieves and analyzes data related to the health and behavior of the Customer’s cluster (metrics, status...). It does not access application specific data.
"Service Software" means the Company software applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Company provides remote access to and/or use of as part of the Services or the Free-Trial Services.
"Specifications" means the specifications for the Services, or the Free-Trial Services set forth in Exhibit C and, to the extent consistent with and not limiting of the foregoing, the Documentation.
"Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services or the Free-Trial Services that are not proprietary to Company.
2. SAAS SERVICES AND SUPPORT
2.1 Provision of Services (other than Free-Trial Services or Freemium Services). Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms of this Agreement, Company shall use commercially reasonable efforts to provide Customer and its Authorized Users the Services in accordance with (i) the terms and conditions hereof, (ii) the Specifications attached hereto as Exhibit C and (iii)with respect to KuboVisor only, the Service Level Terms attached hereto as Exhibit A (the “Service Level Terms”), except for:
- with respect to KuboVisor only, Scheduled Downtime in accordance with the Service Level Terms;
- Service downtime or degradation due to a force majeure event;
- any other circumstances beyond Company's reasonable control, including Customer's or any Authorized User's use of Third Party Materials, misuse of the Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and
- any suspension or termination of Customer's or any Authorized Users' access to or use of the Services as permitted by this Agreement.
2.2 Provision of Free-Trial Services and Freemium Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms of this Agreement, Customer may use the Free-Trial Services or the Freemium Services, free of charge, for the duration of the Free-Trial Period or the Term, as applicable. For the avoidance of doubt, the Service Level Terms shall not apply in any manner to the Free-Trial Services or the Freemium Services, and Company does not commit to any obligation regarding availability or functioning of Free-Trial Services or Freemium Services.
2.3 As between the Parties, Customer controls Customer’s Cluster(s) and its internal and external components, whether owned, leased or licensed by Customer, located on Customer’s premises or cloud-based environment(s). Customer will only be able to use or benefit from the Services, or as the case may be, the Free-Trial Services, by establishing integrations or other connections to one or more Customer Clusters (each, a “Connection”) or by providing means of permanent access to such Customer’s Cluster to Company (“Access”). By implementing a Connection or granting an Access to a Customer Cluster, Customer hereby grants to Company the right, and is expressly instructing Company, to access and interoperate with that Customer Cluster during the Term, or, as the case may be, the Free-Trial Period, in order to provide and support the Services or, as the case may be, the Free-Trial Services. Customer is responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Customer Cluster and associated data (collectively, “Third-Party Terms”).
2.4 Through Customer’s configuration and use of Connections, Access and Services or Free-Trial Services, Customer has control over the types and amounts of Customer Data. By submitting or enabling retrieving by Company of Customer Data in connection with the Services or the Free-Trial Services, Customer hereby grants to Company the right, and is expressly instructing Company, to Process Customer Data during the Term or, as the case may be, the Free-Trial Period, in order to provide and support the Services or the Free-Trial Services and as otherwise provided in this Agreement.
2.5 All rights granted under Section 2 are limited, nonexclusive and, except as otherwise provided in this Agreement, non-transferable.
2.6 Support for Services. Subject to the terms hereof, Company will provide Customer with reasonable support services in accordance with Company’s standard practice as specified in Exhibit B. For the avoidance of doubt, the provisions of this Section 2.6 do not apply to Free-Trial Services and Freemium Services.
2.7 Support for Free-Trial Services or Freemium Services. Subject to this Agreement, Company may, at its discretion, provide support to Customer in respect of Free-Trial Services or Freemium Services.
3. AUTHORIZATION – RESTRICTIONS AND RESPONSIBILITIES – CUSTOMER OBLIGATIONS
3.1 For the purposes of this Section 3, Services shall be deemed to include and refer to the Services and the Free-Trial Services.
3.2 Authorization. Subject to and conditioned on Customer's payment of the Fees (except for Free-Trial Services or Freemium Services) and compliance with this Agreement, Company hereby authorizes Customer to access and use, during the Term (or the Free-Trial Period as regards the Free-Trial Services), the Services, and such Company Materials as Company may supply or make available to Customer solely in or for Customer’s internal business operations by and through Authorized Users in accordance with the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable. With respect to Free-Trial Services, Customer acknowledges and agrees that, at the end of the Free-Trial Period, Customer’s access to the Free-Trial Services will be automatically terminated, with or without notice, unless Customer elects to access the Services on a paid subscription basis. Customer must contact Company at least two (2) business days prior to the end of the Free-Trial Period if Customer wishes to use any Service beyond the Free-Trial Period. In the event Customer wishes to enter into a full production, paid-subscription authorization for the use of the Services, Customer will be required to execute an Order Form, detailing the Services, duration and pricing applicable to the use of the Services.
3.3 Authorization Limitations and Restrictions. Customer shall not, directly or indirectly, access or use the Services or Company Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, Customer shall not, directly or indirectly, except as this Agreement expressly permits:
- reverse engineer, decompile, disassemble or otherwise attempt to discover, derive or gain access to the source code, object code or underlying structure, know-how or algorithms relevant to the Services or any software, documentation or data related to the Service Software or the Company Materials;
- copy, modify, translate, or create derivative works or improvements based on the Services or any Software or Company Materials (except to the extent expressly permitted by Company or authorized within the Services);
- bypass or breach any security device or protection used by the Services or Company Materials or access or use the Services or Company Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- rent, lease, lend, sell, assign, distribute, publish, transfer or otherwise commercially exploit or make any Services or Company Materials available to any Person other than an Authorized User, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- use the Services or any Service Software for the benefit of a third party;
- remove, delete, alter or obscure any proprietary notices or labels;
- access or use the Services or Company’s materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Company customer);
- access or use the Services or Company Materials for purposes of competitive analysis of the Services or Company’s Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage;
- use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any information or material, for any purpose that may (a) menace or harass any Person or cause damage or injury to any Person or property, (b) involve the publication of any material that is false, defamatory, injurious, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) contain, transmit or activate any Harmful Code, or (f) violate applicable Laws; or
- otherwise access or use the Services or Company Materials beyond the scope of the authorization granted under Section 3.2
3.4 Third parties. Customer may authorize a third-party service provider (a "Third-Party Service Provider", it being specified that each Third-Party Service Provider shall be deemed an Authorized User for the purposes of the Agreement) to use the Services for the benefit of the Customer. Third Party Service Provider's use of the Services and provision of services to Customer related thereto including but not limited to any terms, conditions, warranties or representations associated with such services and any exchange of data between Customer and such Third-Party Service Provider is solely between Customer and the relevant Third-Party Service Provider. Company shall have no liability or obligation for, and does not endorse or accept any responsibility for Third-Party Service Provider, the contents or use of third party web sites or any transactions completed with Third-Party Service Provider or any third parties. Customer is responsible for all acts and omissions of Third-Party Service Provider or any third party Authorized User. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Services and notify Company promptly of any such unauthorized access or use.
3.5 Compliance. Customer will comply with all applicable Laws in connection with its use of the Services. Customer will ensure that any use of the Services by Authorized Users is in accordance with the terms of this Agreement.
3.6 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited under Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately (a) take all reasonable and lawful measures within their respective control that are necessary to stop and/or mitigate the activity or threatened activity and (b) notify Company of any such actual or threatened activity.
3.7 Cooperation. Customer shall provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with this Agreement.
4. SERVICE AND SYSTEM CONTROL
4.1 For the purposes of Sections 4.2 to 4.4, Services shall be deemed to include and refer to the Services and the Free-Trial Services.
4.2 Control and responsibilities. Except as otherwise expressly provided in this Agreement, as between the parties:
- (a) Company has and will retain sole control over the operation, provision, maintenance and management of the Services and Company Materials, including the: (i) Company Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of support services and Services maintenance, upgrades, corrections and repairs; and
- Customer has and will retain sole responsibility for: (i) all Account Data and Customer Data, including its content and use (subject to Company's obligations provided herein in respect of Account Data and Customer Data); (ii) all information, instructions or materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) operation, maintenance and management of, and all access to and use of, the Customer Systems and Customer’s Cluster; (iv) the security and use of Customer's and its Authorized Users' Access Credentials; and (v) all access to and use of the Services and Company Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
4.3 Changes. Company reserves the right, in its sole discretion, to make any changes to the Services and Company Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company's services to its customers, (ii) the competitive strength of or market for Company's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.
4.4 Subcontractors. Subject to the provisions of this Section 4.4, Company may from time to time in its discretion engage third parties to perform all or part of the Services (each, a "Subcontractor"). In case of any contemplated addition or replacement of a Subcontractor for carrying out personal data processing activities on behalf of Customer, Company shall inform Customer in advance in writing of such contemplated addition or replacement, and shall indicate the identity and contact details of the Subcontractor and the date of the contemplated subcontracting agreement. Customer may object to the proposed change within 30 days of its notification by Company. Absent any written objection by Customer within the abovementioned time period, Company may engage the contemplated Subcontractor. In the event Company engages a Subcontractor for carrying out specific personal data processing activities on behalf of Customer, the same data protection obligations as set out herein shall be imposed on that Subcontractor by way of a contract or other legal act under European Union or an European Union Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of applicable Law. Should a Subcontractor fail to fulfill its data protection obligations, Company shall remain fully liable to Customer for the performance of that Subcontractor’s obligations.
4.5 Suspension or Termination of Services. Without prejudice of Section 4.6, Company may suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Company Materials, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; or (c) this Agreement expires or is terminated. This Section 4.4 does not limit any of Company’s other rights or remedies.
4.6 Suspension or Termination of Free-Trial Services. Company may suspend, terminate or otherwise deny Customer’s, any Authorized User's or any other Person's access to or use of all or any part of the Free-Trial Services or Company Materials in respect of Free-Trial Services. This Section 4.6 does not limit any of Company’s other rights or remedies.
4.7 Suspension or Termination of Freemium Services. At any time and without notice, Company reserves the right to (i) modify the terms and conditions of any Freemium Service offer, or (ii) cancel such Freemium Service offerings. In addition, Company may suspend, terminate or otherwise deny Customer’s, any Authorized User's or any other Person's access to or use of all or any part of the Services or Company Materials in respect of Freemium Services. This Section 4.7 does not limit any of Company’s other rights or remedies.
5. CONFIDENTIALITY – PROPRIETARY RIGHTS
5.1 For the purposes of this Section 5, Services shall be deemed to include and refer to the Services and the Free-Trial Services.
5.2 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (including Customer Data). The Receiving Party agrees: (i) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third party any such Proprietary Information and (ii) safeguard the Proprietary Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality, or (d) was independently developed without reference to any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by Law (it being specified that in such a case, the parties hereto shall cooperate in order to oppose such disclosure or to seek a protective order or other remedy, to the extent permitted by Law, and that the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose).
5.3 Services and Company Materials. All right, title and interest in and to the Services, the Company Materials and Company Proprietary Information, including all improvements or modifications thereto, as well as all Intellectual Property Rights therein, are and will remain with Company and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Company Materials (including Third-Party Materials) except as expressly set forth in Section 3.2 or the applicable third-party license, in each case subject to Section 3.3.
5.4 Customer Materials. Customer shall own all right, title and interest in and to the Customer Data and other Customer Proprietary Information, including all Intellectual Property Rights therein.
5.5 Consent to Use Customer Data and Account Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data and Account Data: (a) to Company, its Subcontractors and the Customer Personnel as are necessary or useful to perform the Services; and (b) to Company as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
6.1 For the purposes of this Section 6, Services shall be deemed to include and refer to the Services and the Free-Trial Services.
6.2 Company Systems and Security Obligations. Company will employ security measures in accordance with Company's Security Policy as amended from time to time, a current copy of which is set forth in Exhibit D ("Security Policy"). Taking into account the nature and types of Customer Data, Company will employ administrative, physical and technical measures in accordance with applicable industry practice to prevent the accidental loss or unauthorized access, use, alteration or disclosure of Customer Data under its control during the Term.
6.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services (subject to Company's own obligations provided herein when Processing Account Data and Customer Data).
6.4 Except for limited personal information in Account Data, Company does not require personal information for Customer’s access and use of the Services. Customer shall limit personal information in Account Data to only that necessary for the creation and administration of its Kubo Labs Account.
6.5 Company may Process information about Customer’s configuration and use of the Services (“Usage Data”), Customer Data and Account Data: (a) to manage Customer’s account, including to calculate Fees; (b) to provide and improve the Services and support, including to address support requests and troubleshoot other issues; and (c) to provide Customer and Authorized Users insights, service and feature announcements and other reporting. Company may also Process Usage Data that has been aggregated and/or anonymized (including, for clarity, that does not allow a third party to identify Customer as the source of the information): (i) to develop new services and features and (ii) to promote Company's services, including, for example, through analyses of patterns and trends. Company’s Processing of Usage Data, Customer Data and Account Data shall at all times be subject to Company’s obligations under this Agreement.
7. PAYMENT OF FEES
7.1 Fees. Customer will pay Company the then applicable fees described in the Order Form for the Services and other services as may be provided in the Order Form, in accordance with the terms therein (the "Fees"). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
7.2 Payment. Customer shall pay, or shall procure the payment of, all Fees on or prior to the due date set forth in the applicable Order Form. Unpaid amounts shall bear interest at a rate which shall be the greatest of (i) 2.5% or (ii) three times the legal interest rate in France (taux d’intérêt legal) per month on any outstanding balance, plus all expenses of collection and may result in immediate termination of Services. Customer shall make all payments hereunder in Euros (EUR) by wire transfer to the account as Company may specify in writing from time to time.
7.3 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, value-added, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company's income.
7.4 No Deductions or Setoffs. All amounts payable to Company under this Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than, solely with respect to KuboVisor, Service Credit issued pursuant to Exhibit A or any deduction or withholding of tax as may be required by applicable Law).
8. TERM AND TERMINATION
8.1 Term and Renewal (Services). Subject to earlier termination as provided below, this Agreement is:
(i) as to the Services (other than Freemium Services), for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (the Initial Service Term together with all subsequent renewal periods being referred to collectively as the "Services Term"), unless either (a) Customer requests termination at least ten (10) days prior to the end of the then-current term or (b) Company requests termination at least twenty (20) days prior to the end of the then-current term.
(ii) as to the Freemium Services, for perpetuity, unless terminated at any time without notice by either party (the "Freemium Services Term").
The Services Term and the Freemium Services Term are collectively referred to as the “Term”.
8.2 Early Termination (Annual Subscription). In addition to any other remedies, in case Customer has subscribed to an annual subscription, either party may also terminate this Agreement without notice, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
8.3 Reversibility. Upon any termination, Company will, upon Customer’s request, make reports prepared by the Company, if any, when performing the Services during the Term available to Customer for electronic retrieval in an industry standard format for a period of thirty (30) days following such termination. This provision does not apply to Free-Trial Services or Freemium Services.
8.4 Term (Free-Trial Services). Subject to earlier termination as provided herein, in respect of the Free-Trial Services, this Agreement is for the Free-Trial Period.
8.5 Termination (Free-Trial Services). Customer may terminate the Free-Trial Services, with or without cause, at any time, by providing a written notice to Company. Company may terminate the Agreement in respect of Free-Trial Services at any time, with or without cause and with or without notice.
8.6 Surviving Terms. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.
9. REPRESENTATIONS AND WARRANTIES
9.1 Mutual Representations. Each party represents and warrants to the other party that:
- it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or organization;
- it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant hereunder;
- the execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such party;
- this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2 Additional Representations. Customer shall use the Services and Free-Trial Services only in compliance with Company’s standard published policies and specifications then in effect (the "Policy"). Customer represents, covenants and warrants to Company that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received or retrieved by Company and Processed in accordance with this Agreement, it does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any other rights of any third party or violate any applicable Law.
10. WARRANTY AND DISCLAIMER
Except in the case of Free-Trial Services and Freemium Services, as to which Company makes no warranties of any kind with respect to the quality, conformity or availability thereof, Company shall use reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions therein and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
However, Company does not warrant that the Services will be uninterrupted or error free or that Company will correct all Services errors; nor does it make any warranty as to the results that may be obtained from use of the Services. Company does not control the transfer of data over communications facilities, including the Internet, and the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
Except as expressly set forth in this section, the Services and Free-Trial Services are provided “as is” and “as available”. Unless expressly provided herein, Company makes no representation or warranty, and has no support obligations or liability, with respect to the Customer’s Systems. Company makes no warranties of any kind, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement, to the maximum extent permitted by applicable Law. Any changes to Customer’s Cluster(s) (including their unavailability) or Third-Party Terms during the Term do not affect Customer's obligations under the Agreement.
11. LIMITATION OF LIABILITY
11.1 Exclusions. Except as otherwise provided in Section 11.3, in no event will Company or any of its providers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees be liable under or in connection with this Agreement or its subject matter for: (a) any loss of production, use, business, revenue or profit; (b) any impairment, error, inability to use or loss, interruption or delay of the Services (other than, where applicable, for the issuance of any applicable Service Credit hereunder); (c) any loss, damage, inaccuracy, corruption or recovery of data; (d) any indirect, incidental, special or consequential damages; (e) any matter beyond Company’s reasonable control including a force majeure event.
11.2 Cap on Liability. Except as otherwise provided in Section 11.3, in no event shall the collective aggregate liability of Company and its providers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees under or in connection with this Agreement or its subject matter exceed (i) as to the Services (other than Freemium Services), the Fees paid by Customer to Company for the Services in the twelve (12) months preceding the event giving rise to the liability or, (ii) as to the Free-Trial Services or the Freemium Services, two hundred euros.
11.3 Exceptions. The exceptions and limitations provided in Sections 11.1 and 11.2 shall not apply to Company’s liability for Company’s gross negligence (faute lourde) or willful misconduct (dol).
11.4 Time limit. In no event will to the Company or any of its providers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees be liable in respect of any claim made under this Agreement under or in connection therewith unless such claim has been duly notified to the Company and/or, as the case may be, the relevant Company’s providers, officers, affiliates, representatives, contractors and employees within twelve (12) months of the occurrence of the event on which such claim is based on.
11.5 Effect of Customer Failure or Delay. Company shall not be responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person(s)) for employment or engagement as an independent contractor any Company Personnel then or within the prior twelve (12) months employed or engaged by Company. In the event of a breach of this Section 12, Company will be entitled to liquidated damages (clause pénale) equal to the compensation paid by Company to the applicable employee or contractor during the prior twelve (12) months.
13. CUSTOMER REFERENCE
Customer agrees that Company may identify Customer as a recipient of services and use Customer’s logo and name in sales presentations, promotional and marketing materials (including lists of current or former customers) and press releases.
14. DATA PRIVACY
For the purposes of this Section 14, Services shall be deemed to include and refer to the Services and the Free-Trial Services.
Each party shall comply with applicable provisions relating to personal data and shall, in respect of the processing of personal data for which it is responsible, make all required formalities, filings and generally do what is necessary with any competent authorities and to comply with the rights of the persons whose personal data is concerned. Customer, which shall remain responsible in selecting the Services, shall make sure that the Services comply with the required features in order to proceed with the treatment of personal data contemplated in connection with the use of the Services, in light of applicable rules.
14.2 Security. Company takes, according to the terms and conditions of the Agreement, and ensures that its Subcontractors take all necessary measures to preserve the security and confidentiality of the personal data which it has access to. Company will not access or use the data other than for the performance of the Services (including support services) and in accordance with the provisions of the Agreement. Company will ensure that Persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
14.3 Transfer. The Services will be provided from locations and/or through use of Subcontractors located in the European Union.
14.4 Audit. Should Company be instructed by Customer to act as processor of personal data on Customer’s behalf, Company will make available to Customer information necessary to demonstrate that adequate security measures in relation to personal data are implemented when performing the Services, and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer.
14.5 Assistance. Should Company be instructed by Customer to act as processor of personal data on Customer’s behalf, Company will assist Customer in ensuring compliance with the obligations relating to security of processing, notification of personal data breach to competent authorities, and communication of a data breach to the data subject, taking into account the nature of processing and the information available to Company.
15.1 Severability. To the extent permitted by Law, if any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
15.2 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Company's prior written consent, which consent shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Company's prior written consent is required. No delegation or other transfer will relieve the Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15.2 is void. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.3 Entire Agreement. This Agreement (including the information which is incorporated herein by written reference (including reference to information contained in a URL or referenced policy) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
15.4 Amendments. Company may modify this Agreement at any time by posting a revised version at https://www.kubolabs.io/terms-of-service, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order Form specifies a fixed term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next renewed Term. In either case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to auto-renew, or as to Free-Trial Services or Freemium Services, may choose to stop using the Free-Trial Services and terminate this Agreement upon written notice to Company.
15.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.6 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
15.7 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
15.8 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of France without regard to its conflict of laws provisions. Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the courts of Paris, France, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
EXHIBIT A: SERVICE LEVEL TERMS
Service Level. Subject to the terms and conditions of the Agreement, Company will use commercially reasonable efforts to make KuboVisor available at least 99,5% of the time as measured over the course of each calendar month (each such calendar month, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below (the "Availability Requirement").
Service Level Failures and Remedies. In the event of a Service Level Failure, Company shall issue a credit to Customer in the amount of five percent (5 %) of the Fees (or prorated Fees in case of an annual subscription) for KuboVisor due for the Service Period in which the Service Level Failure occurred (each a "Service Credit"), subject to the following:
- Company has no obligation to issue any Service Credit unless (i) Customer reports the Service Failure to Company immediately on becoming aware of it; and (ii) requests such Service Credit in writing within ten days of the Service Level Failure; and
- in no event will a Service Credit for any Service Period exceed twenty percent of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month (in case of monthly subscription) / in the year (in case of annual subscription) following the Service Period in which the Service Level Failure occurred. The preceding provision sets forth Company's sole obligation and liability and Customer's sole remedy for any Service Level Failure.
Scheduled Downtime. Company will use commercially reasonable efforts to give Customer at least twenty-four hours prior notice of all scheduled outages of the Services ("Scheduled Downtime").
Definitions. "Service Level Failure" means a material failure of KuboVisor to meet the Availability Requirement. "Available" means KuboVisor services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither KuboVisor will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use KuboVisor that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of KuboVisor by Customer or any Authorized User, or using Customer's or an Authorized User's Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User's Internet connectivity; (d) force majeure event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Company pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of KuboVisor pursuant to Section 4.5.
EXHIBIT B: SUPPORT TERMS FOR SERVICES
Company will provide product support to Customer via electronic mail on weekdays during the hours of 9:30 am through 5:30 pm Paris time, with the exclusion of French Bank Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by emailing firstname.lastname@example.org
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within two (2) business days.
Clusters Alerts Support
Company will provide a dedicated support team in order to assist the Customer in his understanding of the alerts sent by KuboVisor.
Company will provide clusters alerts support to Customer via electronic mail on weekdays during the hours of 9:30 am through 5:30 pm Paris time, with the exclusion of French Bank Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by emailing email@example.com
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business days.
EXHIBIT C: SPECIFICATIONS
Personal Computer / Windows or MacOS / Google Chrome last two versions.
EXHIBIT D: SECURITY POLICY
Servers are accessible via an SSH connection. In addition, production servers can only be accessed by whitelisted Company machines (IP).
We leverage Google Cloud backup and redondancy tools and services.
We use industry standards mecanism for authentication and authorization.
TLS is used for network communication.
We may update this Policy from time to time. If we make any changes to this Policy, we will change the “effective date” below and will post the updated Policy on the page on which it is currently located. Continuing to use the Services after we publish changes to this Policy means you are consenting to these changes.