Kubermachines Terms and Conditions
Last updated on January 24, 2020
These Terms of Service define the conditions under which Kubermachines hereafter referred to as "Kubermachines") agrees to provide to its Customers the Infrastructure, Platform and Software Cloud Services along with the Cloud Console Interface provided to the Customer (hereafter referred to as “the Service”). In order to use the Service, Customers must explicitly accept all the terms herein without reservations or modifications for individual cases before using the Service. Use of the Service constitutes acceptance and agreement to the Terms of Service.
1. Customer Eligibility and Responsibilities
1.1 By agreeing to these Terms and Conditions, the Customer declares that they are under no legal restriction under the laws of the European Union and the laws of the jurisdiction from which the Customer operates, to enter into a binding contract to use the Service, unless any such restrictions have been approved in writing by Kubermachines and backed up by appropriate authorizations acceptable to Kubermachines.
1.2 To be eligible to use the service, the Customer must register in the Service providing current and correct identification as requested. The required information may vary depending on factors determined necessary at the sole discretion of Kubermachines. Customer is solely responsible for maintaining the correctness of the registration information in the Kubermachines Customer panel (hereafter referred to as “Customer Portal”) and entering changes which may occur in a timely manner. The Customer is responsible for keeping account information confidential, and for all changes made in the account settings and activity carried out in and by the account and services used. Customer is also responsible for the security of the service being used. Should a Customer become aware of any unauthorized use of the account, or other breach of security, the Customer must immediately inform Kubermachines by email or support ticket and provide full details of the nature of the misuse. Kubermachines will not be responsible for any consequences whether loss or damages, arising out of errors or failures by the Customer to provide correct account information or to maintain the security of service being used.
1.3 Customer is solely responsible for all content introduced into, created by, or distributed from the Service of Customer. Customer is responsible for taking appropriate remedial action without delay on being notified of any inappropriate use of the Service as defined in the Acceptable Use Policy of Kubermachines.
1.4 Customers are expected to be technically competent to manage the service(s) ordered or to have access to such know-how and competencies to ensure the proper functioning of the Service created by or for, the Customer. Kubermachines will not be responsible for any losses by the Customer for Customer's inability to use the Service due to any improper configuration of the Service.
1.5 Customer Data security: Customer is solely responsible for the preservation of Customer's Data. Even with respect of Data which Customer contracts for backup services, Kubermachines shall have no responsibility to preserve Data, the service is provided as is, without warranty.
1.6 Any failure by the Customer to adhere to the Terms and Conditions presented herein may result in the immediate termination by Kubermachines of the Customers eligibility to use the Service at their sole discretion.
2. Master Service Agreement
2.1 Term : This Agreement will begin on the day Customer signs up to the first Service, and will continue until the termination of the last Service. The Services to which Customer subscribes will automatically renew at the end of each cycle for a subsequent cycle as defined by the purchase order of the Service, until either party provides written notice to the other stating their wish to discontinue the Service, no less than 7 days before the due date of the next invoice unless this notice period is otherwise defined in the purchase order of the Service. All payments are nonrefundable. Customer's sole remedy for Kubermachines's nonperformance of any Services will be a credit issued pursuant to any applicable Service Level Agreement.
2.2 Charging Policies : All charges are denominated, and Customer must pay, in the currency as invoiced and shown to the Customer in the Customer Portal. Charges will be applied to the account on the creation or upgrading of services, at each renewal for another month, and at any time that the Customer exceeds defined service limits and requests additional resources. Customer account must contain a positive balance for services to be provided. At a time that the account will go overdrawn Customer is required to pay all outstanding dues to continue with the Service. On the Customer's request Kubermachines will issue an invoice at the end of each month for charges levied in that month. Services not paid for within terms are subject to a finance charge at the rate of 2% per month for the duration of the overdue period.
2.3 Usage-Based Billed Services, will be billed on the basis of consumption or allocation of resources and in monthly intervals. Each unit of a Usage-Based Billed Service consumed or allocated by Customer will be rounded up to the next whole unit. An initial base rate and overage rate for the Services will be established by Kubermachines and communicated to Customer in the original sales quote or during the order process. Customer is solely responsible for the tracking and controlling of its usage of the Usage-Based Billed Services within the Customer Portal, and Kubermachines will have no responsibility to notify Customer pertaining to any usage.
2.3.1 Support Services: Support Services including but not limited to remote or onsite training, technical support, provisioning support, software or development support, devops or server management and data migration support can be provided on an hourly basis and billed in 15 minute intervals at Kubermachines's then current rates or otherwise as agreed by the parties. Kubermachines makes no guarantee that it has Support Services available, unless the Support Service task has been agreed upon between Customer and Kubermachines or contracted on a monthly basis.
2.5 Taxes, Duties, Levies and other fees: Customer will pay or provide appropriate exemption documentation for all taxes, duties, levies, and any other fees related to the Services imposed by any governmental authority. All Fees are quoted exclusive of any such taxes, duties, levies, or fees, and these will be added at the time of the charge being made to the Customer.
3. Other Customer Duties and Obligations
3.1 Customer will provide to Kubermachines and thereafter maintain, true, accurate, current, and complete Customer identifying information which Kubermachines may from time to time require to fulfill its duties under this agreement and keep Customer identifying information up to date in the Customer Portal.
3.2 Ensure proper security measures and procedures are applied at all times, and to notify Kubermachines of any actual or suspected breaches or lapses thereof; Customer will use reasonable security precautions for providing access to the Service by its employees or other individuals to whom it provides access, whether in connection with Customer's internal business purposes or as a Customer Offering. Customer will be solely responsible for ensuring the confidentiality and security of all account login names and passwords, and for all Customer conduct in connection with such account credentials. Customer will implement internal protocols and procedures whereby terminated personnel will no longer be able to use any of the Service. All passwords used by Customer or its personnel must be a complex, secure combinations of characters and not be comprised solely of dictionary words.
3.3 To report to Kubermachines by email or ticket in the Customer Portal the Service performance problems encountered with the Service as soon as Customer observes them. Customer agrees to provide Kubermachines with supporting information as reasonably requested by Kubermachines, and to the extent such information is available to Customer, which may include(as applicable), without limitation, service or cloud ID, Customer Email address, IP address(es), traceroute, ping or MTR output. Customer will cooperate with Kubermachines's investigation of outages, security problems, and any suspected breach of this Agreement.
3.4 Ensure that adequate funds or active payment methods are available in the account to maintain the anticipated required services;
3.5 Customer shall comply with all applicable export and import control laws and regulations in its use of Kubermachines Services, and, in particular, Customer shall not utilize Kubermachines Services to export or re-export Data or Software without all required United States and foreign government licenses. Customer assumes full legal responsibility for any access and use of Kubermachines Services wherever they are provided from, with full understanding that the same may constitute export of technology and technical data that may implicate export regulations and/or require export license, and represents that, should such a license be required, it shall be Customer's responsibility to obtain the same, and in the event of any breach of this duty resulting in legal claims against Kubermachines, Customer shall defend and hold Kubermachines harmless from all claims and damages arising therefrom.
4. Service Level Availability : (SLA)
4.1 Kubermachines makes the Service available “as is” while also making all reasonable and commercially viable efforts to ensure continuous availability of both Customer services and the client portal Customer Portal, together with Internet access at the point of entry into and out of, the Kubermachines Network. Kubermachines provides Customers with support staff to which all issues should be reported by using the Customer Portal support ticket system.
4.2 Problems related in any way to the Customer's cloud operating system or any other software on the Service, or to the actions of Customer or third parties, do not constitute Failures and are not subject to any remedy defined herein.
4.3 In the event Kubermachines does not achieve a particular Service Level in a particular month, Kubermachines will issue a credit equal to the compensation listed in the Service Level Agreement applicable to the service. Credits issued in any given month cannot exceed the total payment on the affected service for that month. Kubermachines's support ticket system and monitoring system will be used for calculating any Service Level events. Credits under the Service Level Agreement, if issued to Customer’s account, will be used only to offset future Fees for certain Services as provided in the Service Level Agreement. Such credits may not be sold, converted to cash, used to pay past due balances, or transferred to any Third Party or Affiliate, and will expire on the termination or expiration of this Agreement. To request a credit, Customer must contact Kubermachines by email or support ticket system to the Billing Department in the Customer Portal within Seven (7) days after the incident for which a credit is requested.
4.4 In the event of any damages arising out of Kubermachines’s furnishing or failure to furnish Services under this Agreement, Customer's sole remedies are contained in the Service Level Agreement provision under section 4.3 of this agreement.
5. Disclaimers and Waiver of Liability
KUBERMACHINES DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES PROVIDED HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING HARDWARE, SOFTWARE, OR SERVICES, NOR THE STATEMENT OR CONDUCT OF ANY AGENT OF KUBERMACHINES, SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. CUSTOMER ACKNOWLEDGES THAT HE OR SHE HAS RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN. CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST KUBERMACHINES ARISING OUT OF CUSTOMER'S PURCHASE OR USE OF THE SERVICE, OR ANY CONDUCT OF KUBERMACHINES’S OFFICERS, EMPLOYEES, OR AGENTS. KUBERMACHINES SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY IN ANY AMOUNT, OR FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF KUBERMACHINES HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. NO DISCLOSURE BY KUBERMACHINES’S OFFICERS, EMPLOYEES, OR AGENTS, SHALL BE MADE A CAUSE OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL KUBERMACHINES’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, UNDER STATUTE, OR OTHERWISE, EXCEED THE AMOUNT OF ONE (1) MONTH OF SERVICE PROVIDED PURSUANT TO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT KUBERMACHINES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS.
Notwithstanding any other provision hereof, neither party shall be liable for any damages for loss of profits, loss of revenues, loss of goodwill, loss of anticipated savings, loss of data or cost of purchasing replacement services, or any indirect, incidental, special, consequential, exemplary or punitive damages arising out of the performance or failure to perform under this Agreement.
5.1 Confidentiality : Customer shall keep confidential any Information to which it is given access, and shall cooperate with Kubermachines's efforts to maintain the confidentiality thereof. Customer shall not publish to third parties or distribute information about Customer Service or documentation that Kubermachines provides for purposes of operating and maintaining its Service, including material contained in estimates, invoices, work orders, emails, support tickets with Kubermachines, or other such materials.
5.2 Indemnification : Each party shall indemnify the other from any claims by third parties and expenses (including legal fees and court costs) respecting damage to tangible property, personal injury or death caused by such party’s negligence or wilful misconduct arising in connection with this Agreement.
5.3 Termination : Either party may terminate this Agreement if the other party fails to cure a material breach of the terms of this Agreement within thirty (30) days after receiving notice thereof. In the event Kubermachines terminates this Agreement for Customer's material breach, any amounts owed to Kubermachines hereunder before such termination will be immediately due and payable, any and all rights granted to Customer this Agreement will immediately be canceled, and Customer shall promptly discontinue all use of the Services, relinquish any Confidential Information in Customer's possession or control. If Kubermachines determines that Customer's failure to abide by the terms and conditions of this Agreement may give rise to unlawful consequences or cause an immediate risk of damage to Kubermachines, other Customers, or third parties, Kubermachines may terminate this Agreement with immediate effect.
5.4 Legal Compliance : Kubermachines may suspend or terminate Services and this Agreement immediately upon receipt of any lawfully issued notice from a court having jurisdiction over Kubermachines, alleging the use of the Services to accomplish violations of law, pending the resolution of the relevant court proceeding. When subjected to lawful process requiring disclosure, Kubermachines may disclose the Customer's identity and contact information, and Kubermachines shall not be liable for damages or results thereof, and Customer agrees not to bring any action or claim against Kubermachines for such disclosure.
5.5 Survival : All terms of this Agreement, which by their nature are intended to survive termination of this Agreement, shall so survive
5.6 Force Majeure : Either party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond its reasonable control, including, without limitation, acts of God, war, weather, utility or telecommunications outages, unrest or riot, strikes any action of a governmental entity, etc.; provided that the party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such force majeure.
5.7 Choice of Law, Venue, Consent to Email Service and Waiver of Hague Convention Service Formalities : Any claim arising under this Agreement shall be construed in accordance with the substantive and procedural laws of the European Union, without regard to principles of conflict of laws. Customer consents to the jurisdiction of the European Union. Customer consents to service of process via Domestic or International First Class Certified Mail and/or email to then current land and email addresses shown on invoices and/or in the “Contact” section of Kubermachines's website and waives any requirement under the Hague Convention or other judicial treaty requiring that legal process be translated into any language other than English.
5.8 Final Provisions : This Agreement, including all related agreements and policies incorporated by reference herein, constitutes the entire agreement between the parties related to the subject matter hereof, supersedes any prior or contemporaneous agreement between the parties relating to Kubermachines Service and shall not be modified except by a written agreement signed by both parties, specifically recording the intent to amend this Agreement. Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof.
Kubermachines and its holdings and subsidiaries (collectively called "Kubermachines") have formulated this Acceptable Use Policy in order to encourage the responsible use of Kubermachines’s networks, systems, services, websites and products (collectively "Kubermachines’s Cloud and Services") by our customers and other users ("Users"), and to enable us to provide our Users with secure, reliable and productive services.
Kubermachines’s Cloud and Services must be used in a manner that is consistent with their intended purposes and may be used only for lawful purposes. Users may not use Kubermachines’s Cloud and Services in order to transmit, distribute or store material (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or the privacy, publicity or other personal rights of others, (c) that is fraudulent, obscene, defamatory, libelous, threatening, abusive or hateful or contains a virus, worm, Trojan horse, or other harmful component, (d) containing fraudulent offers for goods or services or any promotional materials that contain false, deceptive or misleading statements, claims or representations, (e) in a manner that may harm Kubermachines or Kubermachines’s Cloud and Services or our customers, by abusing, hacking, network sniffing, network scanning, overloading, denial of service or any other way or (f) generally, in a manner that may expose Kubermachines or any of its personnel to criminal or civil liability.
Responsibility for Content
Kubermachines takes no responsibility for any material created or accessible on or through Kubermachines’s Networks and Services that is not posted by or at the request of Kubermachines. Kubermachines does not monitor nor exercise any editorial control over such material, but reserves the right to do so to the extent permitted by applicable law. Kubermachines is not responsible for the content of any websites other than Kubermachines’s websites, including for the content of websites linked to such Kubermachines’s websites. Links are provided as Internet navigation tools only.
Users may not send unsolicited e-mail messages, including, without limitation, bulk commercial advertising or informational announcements ("Spam") in a way that could be reasonably expected to adversely impact Kubermachines’s Cloud and Services, including, without limitation, using an email account on Kubermachines’s network to send Spam, or using the service of another provider to send Spam or to promote a site hosted on or connected to Kubermachines’s network. In addition, Users may not use Kubermachines’s Cloud and Services in order to (a) send e-mail messages which are excessive and/ or intended to harass or annoy others, (b) continue to send e-mail messages to a recipient that has indicated that he/she does not wish to receive them, (c) send email with forged TCP/IP packet header information, (d) send malicious email, including, without limitation, "mail bombing", (e) send or receive e-mail messages in a manner that violates the use policies of any other internet service provider, or (f) use an e-mail box exclusively as a storage space for data.
Third Party Rules / Usenet
Users may have access through Kubermachines’s Cloud and Services to search engines, subscription web services, chat areas, bulletin boards, web pages, Usenet, or other services that promulgate rules, guidelines or agreements to govern their use. Users must adhere to any such rules, guidelines and agreements. Users who post messages to Usenet newsgroups are responsible for becoming familiar with any written charter or FAQ governing use of such newsgroups and complying therewith. Regardless of such policies, Users may not (a) post the same message, or a series of similar messages, to one or more newsgroups (excessive cross-posting or multiple-posting, also known as "Usenet Spam"), (b) cancel or supersede posts not originally posted by such User, unless such User does so in the course of his/her duties as an official newsgroup moderator, (c) post any message with forged packet header information, (d) post messages that are excessive and/or intended to annoy or harass others, including, without limitation, chain letters, or (e) publish anonymous messages.
System and Network Security
Users are prohibited from violating or attempting to violate the security of Kubermachines's Cloud and Services, including, without limitation, (a) accessing data not intended for such User or logging into a server or account which such User is not authorised to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorisation, (c) attempting to interfere with, disrupt or disable service to any user, host or network, including, without limitation, via means of overloading, "flooding", "mailbombing" or "crashing", (d) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or (e) taking any action in order to obtain services to which such User is not entitled. Violations of system or network security may result in civil or criminal liability. Kubermachines will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
Any User which Kubermachines determines, in its sole discretion, to have violated any element of this Acceptable Use Policy shall receive a written warning and may be subject, at Kubermachines's discretion, to a temporary suspension of service until such User agrees in writing to refrain from any further violations. However, where Kubermachines deems it necessary, it may in its sole discretion immediately suspend or terminate such User's service without issuing such a warning. Users which Kubermachines determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice and Kubermachines may take such further action as Kubermachines solely determines to be appropriate under the circumstances to eliminate or preclude such violation. Kubermachines shall not be liable for any damages of any nature suffered by any Customer, User, or any third party resulting in whole or in part from Kubermachines's exercise of its rights under these policies.
Kubermachines reserves the right to modify this Acceptable Use Policy at any time in its sole and absolute discretion. Changes and modifications will be effective when posted and any use of the Kubermachines Cloud and Services after the posting of any changes will be considered acceptance of those changes.
Kubermachines is committed to ensuring that your privacy and personal data are protected. We will use your personal data in accordance with the applicable laws and regulations.
The Information We Obtain and How We Use It
The information we obtain from you is generally necessary for us to provide you with services and design new services for your future use. For example, we need to know your company name, address and the services you buy from us to properly provide and invoice for those services or recommend how we can best serve you. We may also use information in our records to protect our customers, employees or property - for instance, to investigate fraud, harassment or other types of unlawful service activities involving Kubermachines or other carriers that we do business with. In some cases, it may be necessary to provide this information to the government or third parties that make a lawful demand for it. We share information within our Kubermachines companies to enable us to better understand our customers' product and service needs, and to learn how to best design, develop, and package products and services to best meet those needs. Like any large business, we have structured our company to include a number of smaller companies.
Accuracy of the Information We Hold
We want to make sure the information we obtain and use about customers is accurate. To that end, we strive to verify that our customer records are correct. Much of this information is reflected in your monthly invoice. Furthermore you may view your records upon request. If you see an inaccuracy on your Kubermachines invoice or in your records, and you let us know, we can correct it.
Security and Accountability
We have information systems that collect and store customer information in addition to systems that store our own business records. These systems have different types of security as appropriate for the information stored. Kubermachines requires employees to keep customer information confidential and we hold them accountable for their actions.
Disclosure of Information Outside Kubermachines
As a general rule, without your permission, Kubermachines does not release confidential customer information to unaffiliated third parties. We will only disclose your personal data to third parties, who are not Kubermachines group companies, in the following 4 exceptions:
- To parties who are contractors providing services to assist Kubermachines in performing the tasks for which we may legitimately use the data for example fulfilling orders, processing payment, or assisting our marketing activities. Kubermachines guarantees that these parties are bound by confidentiality provisions that are no less strict than the confidentiality provisions in place between Kubermachines and the customer.
- When legally required to do so, for example in legal proceedings;
- Where it is necessary to comply with applicable laws and regulations;
- When we have your express consent to do so.
Privacy Over the Internet
The only individually identifiable information Kubermachines obtains about individual visitors to our Web sites is information supplied voluntarily by the visitor. This means that you can visit our Web sites without telling us who you are or revealing any information about yourself. To gauge the effectiveness of our Web sites, we do collect some non-individually-identifiable generic information about our visitors. Our Web servers automatically recognize a visitor's Internet service provider, the IP address, the domain name, the type of browser, and the operating system. In addition to, which pages are viewed on our sites, the Web page you were on when you link to our sites, how much time a visitor spends on each page and other information related to the operation and interaction of Kubermachines websites. This information does not reveal a visitor's identity. We aggregate this information and use it to evaluate and improve our Web sites. You can choose to provide individually identifiable information to Kubermachines in a number of ways through our Web sites - by ordering a service from us, sending us email, registering to receive news or information or applying for a job. When visitors supply information about themselves for a specific purpose, Kubermachines uses the information for that purpose (such as to provide the information the visitor has requested or to consider a visitor for a particular job). In addition, when visitors use our websites to order services, or to request information about our services, we may use the individually identifiable information as we would use the same information obtained off-line - for example, to evaluate your service needs and contact you regarding additional services you may find useful. We do not sell or disclose individually identifiable information obtained on-line about our visitors, to anyone outside of Kubermachines except as described above (when Kubermachines is in a business relationship with an unaffiliated party and then under confidentiality restrictions) unless you specifically authorize it, it is required by law (including the service of subpoenas or court orders in either civil or criminal lawsuits), or disclosure is necessary to protect the safety of customers, employees or property. If you provide individually identifiable information to us in the context of an event Kubermachines sponsors with another company, such as a contest, or if you register on a co-sponsored site or feature, you may also be providing the individually identifiable information to the co-sponsor. The Kubermachines Web sites may contain links to other sites. We are not responsible for the content or privacy practices employed by other sites. Other Web sites may have different privacy policies or no policy. Users should review the privacy policies of any Web site before providing personal information.
Kubermachines, or those with whom Kubermachines has a business relationship, will use email to communicate with our customers, respond to visitors' emails, or to inform about events or new products. If you do not want to receive emails about events or new products from Kubermachines and/or those with whom Kubermachines has a business relationship you can object thereto.
Update of this Privacy Statement