Axebow Service Agreement

Terms and Conditions

Service Availability

Axebow makes available to Axebow’s customers a cloud operating system that simplifies the deployment and operations of applications in the cloud (hereinafter referred to as “the Service” or “the Services”), provided as described herein.

Subscription and activation of the Service

The Customer may subscribe to the Service directly or through a Kumori Authorised Reseller. Further information on authorised resellers in your area can be obtained from our Customer Service email address: info@axebow.cloud

If Kumori or the Reseller decides to discontinue the business relationship between them, the Customer shall choose a substitute reseller or purchase a subscription directly from Kumori, which may require the Customer to agree to different terms and conditions.

The application for subscription shall be made directly or through the Customer’s designated Reseller in such case. Activation of the service will be performed by Kumori at the time of service activation.

Withdrawl

The services are aimed at natural or legal persons in the performance of a commercial, business or professional activity, so that Royal Legislative Decree 1/2007, of 16 November, approving the revised text of the General Law for the Defence of Consumers and Users and other complementary laws do not apply, in particular, on the possible right of withdrawal of the Services once subscribed to them.

Authorised uses

The Client undertakes to make appropriate, diligent, legitimate and lawful use of the Services and their contents, in accordance with current legislation, the general and specific conditions of use of the same, generally accepted morals and good customs and public order. The Client must respect the conditions of the Services, as well as the restrictions that may affect them, especially the number of authorised users or, where applicable, the maximum storage capacity included in the Services.

The Customer may only use the Services in accordance with these terms and conditions and must not use or attempt to reverse engineer, decompile or disassemble software underpinning the Services. The Customer may not circumvent the technical limitations and protections embedded in the Services and the software made available to the Customer, or disable, alter or otherwise circumvent the usage and resource metering and analysis mechanisms embedded in the Services. Customer may not distribute, sublicense, rent, lease, loan, loan, lend, resell, assign or transfer the Services, in whole or in part, or use the Services to provide services to any third party. This agreement does not permit or grant the Customer the right to market or obtain an executable version of the software or its installation on infrastructures other than those arranged by the provider of the Services. The Client must be aware of the regulatory requirements that may affect it depending on its location and activities in order to assess the most appropriate measures and resources that it must have in order to meet them.

Suspension

Kumori may suspend the Services and any use or authorisation associated with the same at any time, in the event of non-payment or any breach of these terms and conditions by the Client, without prior notice. Kumori may also terminate the Services early on the basis of the foregoing, but shall notify the Customer’s e-mail address, giving the Customer fifteen (15) working days to regularise the situation before the effective date.

Cancellation of subscription

The subscription shall be understood to be cancelled at the end of the contracted monthly period of activation and use of the subscribed services. Likewise, the early cancellation of any subscription shall be subject to the provisions of this agreement in this respect, as well as, where applicable, to the terms and conditions established in the agreement between the Client and the Reseller to this effect, it being understood that, unless specifically agreed, the request for early cancellation of the Services during the current monthly period shall not be effective until the termination of the same.

Period of validity

The activation of the Services requested will take place once the subscription has been validated and they will remain active during the current monthly payment until they are terminated. However, the customer may extend the services through their monthly subscription, which will remain active as the subscription is renewed. Likewise, this agreement shall remain in full force and effect until the expiration or early termination of the contracted subscription in favour of the Customer, whichever occurs first. The subscription period, unless otherwise specifically and specifically agreed for longer terms, shall be on a monthly basis. The Customer may terminate the Services and this agreement at any time by contacting Kumori or its Reseller, but the effective date shall not occur until the end of the monthly subscription period. However, if either party is in breach of this agreement, the other party may terminate this agreement early by giving fifteen (15) calendar days notice to the other party prior to the effective date in order to cure such breach. Once this period has elapsed without remedy, the Service and this agreement shall be deemed to be terminated.

Renewal

The Customer’s subscription to the Services shall be automatically renewed for monthly periods unless the Customer communicates its intention not to renew before the expiration of the activation period, and provided that the price thereof has been paid. Such renewal may require the acceptance of possible modifications and updates to the Services, as well as the Customer’s acceptance of a new agreement on its current terms and conditions, a supplementary agreement to it or an agreement to modify it.

Prices and payment

The prices of the Services in force shall be those established from time to time by Kumori. In the event of subscription to the Services through a Reseller, the Reseller shall establish the prices of the Service as well as the billing and payment conditions between the Customer and the Reseller. Prices and payment for other additional, optional or ancillary services shall be as agreed between the respective provider and the Customer.

The availability, accessibility and use of the Subscription Services are conditional upon prior subscription by the Client and validation by Kumori, which is an essential condition of this agreement and Services. Failure to pay any monthly fee may result in immediate suspension, unavailability, non-renewal and, if commenced, early termination of the Services by Kumori without prior notice, without prejudice, where applicable, to any additional claim for damages caused by such non-payment. Similarly, Kumori shall also be entitled to terminate this agreement at any time for breach by the Customer in accordance with the terms set forth herein.

Taxes

Each party shall be responsible for the payment of the taxes to which it is subject and obliged to pay.

Rights and authorisations

See Annex I.

End-users

The use of the Services and the software is restricted to the Client subscriber to the Services, and may be used by the authorised user designated by the latter and, where appropriate, by the number of authorised users activated by the same, within the maximum limits permitted for the subscription requested, and the Client undertakes to inform and require its internal users to comply with the terms and conditions of this agreement, and is solely responsible for the use made by its users of the Services. The Client controls the access of end users and is responsible for their use of the Services in accordance with these terms and conditions.

Responsibility for passwords and accounts

Customer is responsible for maintaining the confidentiality and security of any non-public key or authentication credentials related to Customer’s use of the Services. Customer shall promptly notify Customer Support (support-team@axebow.cloud) or, if Customer has subscribed to the Service with a Reseller, through Customer Support or Customer Service, of any potential misuse of Customer’s accounts, keys and credentials and any security incidents related to the Services. The Customer shall be solely responsible for the use of the Services by its employees, employees, officers or partners.

Back-up

The Customer is recommended to make backup copies of all its information on a regular basis and, in any case, prior to the expiration of the contracted subscription, as well as to maintain good security practices in the use of the Services.

Loyalty and good faith

The parties shall act loyally and in good faith in the exercise of their business and professional activities, within the framework of their relationship and of this agreement, looking after each other’s interests in accordance with the agreement articulated and carrying out their activities with integrity. They may not use any idea, data, information, document, document, manual, demonstration, model, platform, system, application or creation provided by one of them, whether it is their own or third party’s information, for purposes other than those agreed or for their own or third party’s benefit, without the prior written consent of the other.

Confidentiality

See Annex II.

Security

Kumori adopts the information security measures, both organisational, technical and physical, required by current legislation in order to reasonably ensure its protection and prevent its alteration, loss, processing or unauthorised access, taking into account the state of technology at all times. However, it cannot fully guarantee the absolute invulnerability of its security systems or those of third parties, given that no security measure that is currently installed is absolutely unbreakable, and therefore Kumori shall not be liable in any case for any incidents that may arise in relation to security breaches when they arise from an attack or unauthorised access to its systems in such a way that it is not possible to detect it by the security systems in place, without prejudice to the possible obligation to communicate the event suffered to the competent authorities and affected users.

Privacy and data protection

 See Annex III.

Intellectual and industrial property

The software and other digital content that may be included in the Subscription Services are protected by the applicable national, European and international intellectual and industrial property laws. Kumori is the owner of the rights to the software, including intellectual and industrial property rights, and reserves all rights to the same, with the exception, where applicable, of the right to temporary use of the software associated with the Services that may be made available to the Client in accordance with the Services contracted, during the period of subscription to the same under the contracted modality.

All industrial and intellectual property rights on trademarks, trade names, logos, creations, documents, manuals, materials, contents, databases, strategies, methodologies, business models, know-how, platforms, tools, methodologies, software, applications and technological solutions that may be displayed or made available to one of the parties during the provision of the Services, with the exception of the temporary rights of use expressly recognised within the framework of the Services, are reserved for their owner.

By subscribing to and activating the Services, the Client will acquire a non-exclusive, limited, conditional, non-transferable and temporary right of professional or business use, internal and for its own benefit (not for the benefit of third parties), during the period of activation of the services contracted, under the terms and conditions governing the same. Under no circumstances does the provision of the software to a Client or access to and use of the same imply any kind of waiver, transmission, licence or total or partial transfer of said rights or expectation of rights, unless expressly established to the contrary.

The Customer shall respect the trademarks and names of Kumori or third parties that may be included in the Services.

Any content or permitted modification that the Client incorporates into the Services must be lawful and legitimate, with respect for any third party rights, in particular Industrial and Intellectual Property rights.

Right of verification

The Customer expressly informs and authorises Kumori to check and review the use of the Services at any time in order to verify compliance with these terms and conditions, without prejudice to the technical control and security mechanisms. The Services may contain tools and technologies designed to analyse and collect information anonymously related to your use of the Services. Kumori reserves the right to monitor and verify the Client’s compliance with these terms and conditions and is entitled to carry out audits at its own expense with such purpose and scope, and the Client shall cooperate to enable such audits to be carried out. These audits may only be carried out once every twelve months, unless there are justified circumstances that justify carrying them out at a shorter interval.

Guarantees

Kumori is subject to the warranties, if any, that are legally enforceable in Spain from time to time for the services covered by this agreement. During the activation of the services, Kumori shall guarantee the corrective maintenance of the Services in order to correct any error or functional defect.

The Services are provided on an “as is” basis in accordance with their description, without any warranties other than those contained in these terms and conditions or applicable mandatory law, and the Customer assumes the risks of using the Services and of satisfying the Customer’s particular or commercial expectations and interests. Kumori makes no other warranties and disclaims all other implied or express warranties of any kind, such as quality, fitness for a particular purpose, intended benefits, compatibility or uninterrupted operation.

Kumori warrants that the Services will perform substantially in accordance with their functionalities and descriptions during the period of activation of the Services. The warranted liabilities for the Services enforceable by the Customer are limited and restricted to those stated in these terms and conditions.

Any warranty offered, legal or commercial, shall not include, and is therefore excluded from the same, defects that have their origin in causes beyond Kumori’s control, including but not limited to (a) faulty information about the Services by the Customer, the Reseller or third party, or false expectation; (b) incorrect or inadequate parameterisation, adaptation, configuration, migration, installation, deployment and/or commissioning of/by the Customer, the Reseller or third parties; (c) improper or inadequate use or maintenance by the Customer, the Reseller or third parties; d) Customer or third party systems, servers, software, interfaces or supplies; e) Unauthorised tampering or alterations; f) Improper use or operation outside the functionality and specifications of the Services; g) Abuse, neglect, accident, loss or damage during use.

The Services are not conceived, prepared, designed or intended for use in high-risk systems or activities where special safety and/or control systems are required in case of errors or resistance to certain environments, risks and adverse conditions, such as, for example, design, construction, maintenance or operation of nuclear facilities, communication systems, distribution of products essential for human sustenance or health, defence and weapons delivery systems or air, maritime, rail or urban traffic control systems or other critical or essential services.

The warranties in this agreement do not apply to problems caused by accident, abuse or use of the Services in a manner inconsistent with the Services, or to free and trial products or services.

Kumori has a continuous monitoring system that reports any system crashes in real time, which allows for the immediate localisation of incidents related to the solution.

Responsibility

Either party shall be liable if it acts negligently, culpably or wilfully in the performance of its obligations under this contract and thereby causes damage or loss to the other party or to third parties related to it. Each of the parties shall not be liable for any damages or losses arising from the negligent, culpable or wilful conduct of the other party, nor for any civil, administrative, labour, fiscal or criminal liability that the other party may incur.

Limitation of liability

Kumori’s maximum liability to the Customer arising from the performance of its obligations or provision of its Services under this agreement shall be limited to the direct damages finally declared in an amount not exceeding the amount paid for the Services during the last contracted subscription period and up to a maximum of 12 monthly payments. In no event shall Kumori’s liability for the Services exceed such amount. The liability for the connectivity of the Service shall be up to the maximum amount offered by the provider of the Service. 

Exclusions of liability

Annex IV

Acts of God and force majeure 

Neither party shall be liable for any failure of performance due to causes beyond such party’s reasonable control and within the scope and limits set forth in these terms and conditions, such as fire, explosion, power failure, earthquake, flood, storm, strike, embargo, labour dispute, pandemic, acts of civil or military authority, war, terrorism, including computer terrorism, acts of nature, acts or omissions of Internet traffic operators, acts or omissions of governmental or regulatory bodies, including the passing of resolutions, decisions or other urgent governmental measures affecting the provision of online services. However, this paragraph shall not apply to payment obligations under this agreement.

Kumori shall not be liable for delays in the provision of the Services due to causes beyond its control, as well as in cases of force majeure, supervening causes or any other circumstance beyond its control, and shall notify the Client as soon as possible of the occurrence of any of these events. If the cause of force majeure lasts for more than 30 consecutive days, the Client may terminate the contract, without prejudice to the fulfilment of the payment obligations accrued until said termination. Problems of accessibility and availability of servers, platforms, networks, failures, system and application crashes, and other similar incidents shall be the responsibility of the respective Internet access, interconnection, transit, hosting, cloud, platform and other service providers, as well as, where applicable, of the clients themselves with respect to their access devices and connections.

Defence and compensation

The Client shall be liable to Kumori and undertakes to indemnify Kumori for all damages that it may suffer as a result of any claim or demand by a third party or sanction proceedings brought against it as a result of a breach by the Client of the terms and conditions of this agreement or of any other obligation that may be required of it under the legislation in force. The liability of the Client to Kumori shall extend to the actions or omissions of the Client, as well as those of its users, employees, collaborators, agents and any other person to whom it has granted access to the contracted Services, especially in the event of the Client’s lack of diligence in the areas of information, training and security, even if the acts or omissions of such persons have not been authorised by the Client.

Expenses and costs of any nature and kind that may be incurred by Kumori in any judicial or extrajudicial claim arising from the Client’s breach of the conditions and commitments undertaken herein shall be exclusively and entirely borne by the Client, including court or arbitration fees, tariffs, fees of solicitors, experts or lawyers (even if their intervention is not mandatory in the judicial or extrajudicial proceedings initiated) and compensation for witnesses.

Relationship between the parties

The parties are and act independently in a manner that in no case implies the constitution of a partnership, integration of activities, agency relationship, business collaboration or the creation of an entity distinct from the intervening parties, so that they will carry out their own activities autonomously and independently, exactly as they have been doing prior to the signing of this agreement. The Customer is free to enter into contracts to license, use or promote non-Kumori Services.

Infrastructure and related services

Kumori may use the specialised technical services of third parties that it requires and considers most appropriate at any given time, and which are necessary to enable the provision of the Services, especially technological infrastructure, in order to deploy and make available to the Client the platform services as a service in PaaS mode, which, in any case, will always be located in the EU and under the security and privacy commitments required by the regulatory framework in force, in order to guarantee the continuity of the services and the protection of the data managed, and may not offer service levels in relation to the availability and security of this infrastructure that are higher than those that may be guaranteed by such third parties. The cloud infrastructure services are currently operated by OVH HISPANO, S.L. (OVH), a provider specialised in cloud infrastructure services, domiciled in Madrid (Spain), calle Alcalá, n°21, 5th floor, which holds ISO/IEC 27001:2017 information security certification for the provision of said service and which has its registered office, operations and infrastructure in Spain. Kumori has the required data processor contract with this provider.

Assistance, maintenance, support and other professional services

The Customer may request from the Reseller information and details of the assistance, maintenance and technical support services to be provided by the Reseller during the subscription period of the Services, as well as optional related services to be provided by the Reseller prior to or concurrently with the Services, such as analysis, consulting, migration, deployment or training, which may be provided by the Reseller, a third party designated by the Reseller or, in the case of specific contracting by the Reseller, by Kumori. Optional related services that may be contracted to Kumori shall be governed by the terms and conditions accompanying such services.

Updating and availability of the Services. Changes to your terms and conditions

Kumori reserves the right to update and modify the features and functionalities of the Services at any time and in any way that constitutes an improvement of the Services, in particular to adapt them to regulatory requirements or guidelines of competent authorities.

The Customer is informed that Kumori may modify these terms and conditions at any time, in particular to adapt them to applicable legislation and any requirements thereof, to follow recommendations, guidelines or criteria by authorities and courts, due to developments or changes in services, technical reasons, operational requirements or any other modifications for the benefit of the Customer.

The Customer will be informed of any planned changes prior to their effective implementation by email, and will have the option to cancel or not renew the services prior to the effective implementation of any changes. Subscription to or use of the services after the effective date of the changes will imply your acceptance of the new terms and conditions. In the event of non-acceptance of the new terms and conditions, the Customer shall cease to use the services and shall not renew its monthly subscription. However, Kumori undertakes to maintain the monthly subscription prices being paid by the Customer for a minimum period of six (6) months after any revisions are approved, unless they correspond to annual updates in line with the increase in the CPI or correspond to the price increase of any services provided by third party partners and necessary for the availability of the Services in the subscription mode.

Similarly, Kumori may unilaterally revise and update the Services or make changes to the Services without charge to the Client in order to improve and further provide the Services. Any updates shall be subject to these terms and conditions, unless the updates are accompanied by particular or different terms and conditions, in which case those other terms shall apply. If the Customer does not accept the updates and any accompanying terms and conditions, the Customer may not use the updates. Any updates carried out for this purpose will be previously informed by e-mail. If you do not accept these updates, you must stop using the services and not renew your monthly subscription. Kumori is not obliged to carry out any specific updates.

Kumori also reserves the right to modify the Services or to remove certain non-essential features or functionalities at any time, in particular with a view to improving the Services, optimising their organisation, management and provision or adapting them to the agreements it has with third parties for their provision. These modifications will also be notified by e-mail.  If you do not accept them, you must stop using the services and not renew your monthly subscription. 

Kumori reserves the right to cease the operation of the Services and the marketing of its software at any time, but undertakes to give its resellers and customers at least three (3) months prior notice.

Compliance with regulatory requirements

The compliance of each of the parties and their activities with the applicable national or international regulations in force, in particular, with the regulations governing information society services, electronic contracting, digital markets and services, data governance, anti-corruption, intellectual property, telecommunications, privacy or the protection of consumers and users, is their individual and exclusive decision and responsibility.

Contact and communications

Notifications to Kumori shall be made by post to the address below:

Kumori Systems, S.L.

TAX IDENTIFICATION NUMBER B98684624

Avenida de Menéndez y Pelayo, 5

46010 Valencia (Spain)

info@axebow.cloud

Notifications to the Customer will henceforth be made by email to the administrators of the account designated when applying for subscription to the Services, whether from the Customer, the Reseller or both, which is accepted by the Customer, and shall be deemed to have been made on the date of sending. It is the Customer’s responsibility to ensure that the email address is correct and up to date. 

Transfer

The Customer may not assign this agreement and its position in this agreement, in whole or in part, or any rights or obligations arising from this agreement in its favour or at its expense. Kumori may transfer this agreement and its position in the agreement to third parties or to companies in which it or the current partners together or separately have a majority interest, provided that the rights of the Customer under this agreement are maintained. In any case, any assignment shall be communicated to the Client for due record. Any prohibited assignment shall be null and void.

Integrity

This document constitutes the only valid and valid agreement regulating the terms and conditions of the Services. All the conditions constitute an indivisible whole, and the Client therefore undertakes to observe it faithfully, and may not waive it, in whole or in part, nor alter or modify its terms, unless expressly and formally authorised by Kumori.

Update

In the event that one or more of the terms of the agreement or parts thereof become invalid, illegal or unenforceable by virtue of any legal provision, authority or administrative or judicial decision, they shall be deemed ineffective to the extent applicable, but otherwise this agreement shall remain valid. The parties agree to replace the affected conditions by one or more other conditions having the most similar legal and economic effects to those replaced.

Subsistence

All provisions of this agreement shall survive its termination, except for those that are to be performed only during the term of this agreement.

Powers of representation and authority

If you are a person accepting these terms and conditions on behalf of a legal entity, you represent that you have the power of attorney and legal authority to enter into this contract on behalf of that entity.

Applicable law

This agreement shall be governed in accordance with the provisions of its own clauses and, in all matters not provided for therein, by the applicable Spanish legislation contained in the Civil Code, Commercial Code, special laws and commercial uses.

Competent jurisdiction

The parties express their willingness to try to resolve in good faith and amicably any disagreement or dispute that may arise in the execution of this agreement and provision of the Services, prior to resorting to the courts for its resolution, in accordance with the provisions of the same.

However, should they be unable to resolve their differences amicably, in order to resolve any divergence or conflict that may arise in relation to the interpretation, application, fulfilment or execution of this agreement, both parties expressly submit themselves, renouncing their own jurisdiction, to the Courts and Tribunals of the city of Valencia (Spain).

Glossary of terms and definitions

Update: New version of the Application released by Kumori, either for the correction of errors or, without any obligation under this Agreement, for the improvement of its functionality or interoperability, providing additional features or any increase or improvement of its performance.

Customer: Natural or legal person who contracts access to and use of the cloud PaaS services by activating them.

Content: Any digital element that may be made available to the Client within the framework of the Services and that may be managed by the Client through the Services, including, but not limited to, texts, documents, guides, manuals, methodologies, modules, algorithms, processes, procedures, files, data, databases, images, graphics, videos or audio.

Error: Any programming defect or error in the functionality of the application. 

Specifications: Technical characteristics of the Services intrinsic to and relating to their accessibility, availability and use.

Functionalities: Functionalities of the Services, whether or not described in their characteristics or provided by the provider.

PaaS: Acronym for Platform as a Service, consisting of a service offered to clients by Kumori based on the provision of a complete processing platform for the development, testing, deployment, hosting and maintenance of the client’s own operating systems and applications, in which the client has control over the applications installed and their configuration, with the possibility of installing new applications, as well as over their data, which will be hosted in their own infrastructure outside Kumori. The client has a catalogue of services and options that allow him to respond to his needs at all times, in a flexible and adaptive manner, assuming payment for the contracted time of use and additional services demanded.

Internal User: A natural person dependent on and professionally or occupationally linked to the Client contracting the Services in the indicated modality, who has been authorised by the latter to access and use the Services for exclusively corporate and internal purposes.

Reseller: A natural or legal person authorised to resell subscriptions to Axebow Services.

Axebow: Platform developed by Kumori marketed in PaaS mode to its customers from Kumori’s cloud infrastructure, so that the end customer will access and use it remotely via the Internet during the activation period of the services contracted by the customer.

Annex I

Rights and authorisations

The contracting of the Services entails a temporary authorisation of access and use of the platform under the indicated modality by the Client during the period of activation of the contracted Services.

The rights and authorisations granted under this Agreement to the Services and any software that may be associated with the Platform are non-exclusive and are applicable provided that you comply with the terms and conditions of this Agreement and that you maintain an active subscription to the Services.

The subscription of the Services, once requested and activated, entails an authorisation of use of the platform as a PaaS service by the Client, and entails a non-exclusive, personal, limited, conditional, non-transferable, national (Spain) and temporary right of access and use of the same from the activation of the subscribed services while maintaining its monthly subscription, and exclusively for use by the Client during the contracted subscription period, not being susceptible to assignment, transfer or use by third parties.

The authorisations and licences relating to these pre-subscription services are temporary, not perpetual.

The rights of use in force when the Customer applies for subscription shall apply to the Customer’s use of the current version of the platform at that time. In case of new versions or modules, the accompanying conditions and rights of use shall apply. Kumori informs its Customers about major changes and updates made available to them.

When the Customer applies for or renews a subscription to the Services, the terms and conditions of the Services in force shall apply to the Services.

The Customer may not assign, sub-license, distribute, lease or transfer or distribute the rights conferred by these terms and conditions to the Services or to the elements that comprise them, either totally or partially, for commercial or non-commercial purposes, onerous or free of charge, or carry out acts that directly or indirectly involve an economic exploitation of the same other than the personal and particular right of use granted – neither by himself, nor through or on behalf of third parties.

The options, utilities, tools, functions, content, libraries and improvements to the Services that Kumori may develop specifically for customers may be integrated into the present or future versions or updates thereof, if Kumori so determines, and may be used, integrated, published, distributed, marketed and exploited by Kumori. In the event that Kumori may unilaterally develop updates, new versions, options or modules associated with the platform, Kumori may make them available to its customers under the terms and conditions that accompany them.

The Services may incorporate technical protection measures and systems for version, licence and user control, as well as against unauthorised/controlled copying and access. In addition, they may incorporate incident alert systems. The Customer is informed and accepts the inclusion and use of control and DRM (Digital Rights Management) or security devices, and may not disable them. The Services may integrate logging utilities, automatic reporting and electronic sending of errors to Kumori for improvement. In such case, the information is sent to Kumori’s systems.

The Client must inform Kumori of any incident, act or activity that may be contrary to or represent a risk to the confidentiality of the information or an infringement of the intellectual or industrial property rights thereof, as well as any breach of security of which it may become aware.

The Customer shall inform its personnel of these terms and conditions, and the Customer shall be solely responsible for the use of the Services by its personnel and authorised users of the Services.

Annex II

Confidentiality

The parties are obliged to keep confidential and secret all information which they provide to each other or to which they have access or become aware of in connection with the provision of the contracted services, whether such information relates to the parties or to third parties with whom they have a direct or indirect relationship.

For the present purposes, “confidential information” shall mean any non-public information, whether oral, written or expressed in any other tangible, legible or viewable form which a party designates as confidential or which, under the circumstances surrounding its access and/or disclosure, the receiving party knows or has reason to know should be treated as confidential. Accordingly, this information may not be disclosed to third parties except with the prior written consent of the party providing the information, or when it is necessary for the provision and use of the Services and within the framework of the Services, is carried out following the orders and instructions of the Client or in the other cases expressly provided for in these Terms of Service.

In particular, confidential information shall include, but is not limited to, tangible and intangible information relating to and/or incorporating technological solutions, applications, methodologies of organisation and internal management of the activity and business of either party, industrial processes, business strategies, non-public commercial practices or policies, data relating to natural persons owned and/or managed by the parties, as well as information received from third parties which either party is obliged to treat as confidential information, as well as other information relating to the business of the company which, if known against its will, may affect its reputation, social image, competitive capacity or its own interests or those of third parties related to it.

The knowledge and experience inherent in the proposals, projects, technological solutions, platforms, software and products designed, developed and/or implemented by Kumori and their applications, as well as the technical knowledge used for the approach, design, development, implementation of the same, procedures, methodologies and strategies are its own confidential information.

Confidential information shall not include information which, regardless of its designation: (a) is or subsequently becomes generally available to the public without being the result of a breach by the party receiving the information of any of its obligations to the party supplying the information; (b) was already known to the receiving party before it was supplied by the supplying party in accordance with this agreement; or (c) has come to the legitimate knowledge of the receiving party from a third party without breach of any obligation of confidentiality owed to the supplying party; (d) is made available for communication to or use by a third party.

The parties undertake not to disclose or use, directly or indirectly, the information and knowledge acquired from the relationship established between the parties in other services or activities that are not the object of this contract or for any purpose other than that agreed between the parties without the express written authorisation of the other interested or affected party, and also undertake to take the necessary measures, both with respect to their directors, partners, affiliates, employees and professionals and third parties who may have any relationship with this contract, to ensure knowledge of these obligations and compliance with what is agreed in this clause.

The parties mutually assume the obligation to communicate to each other any leakage of information of which they have or may become aware, it being understood that such communication does not exempt the party that has breached the confidentiality commitments and the liabilities arising from such omission.

Upon termination of the Services (for whatever reason) and this agreement, each party shall securely destroy the information held by the other, adopting the necessary measures to prevent its future recovery or reconstruction and its access by third parties, except for the information that must be kept or retained in accordance with the established legal relationship and as required by the legislation in force.

These obligations shall remain in full force and effect not only during the term of this contract, but also after its termination, irrespective of the cause of termination.

Annex III

Privacy and data protection

Kumori undertakes to maintain due confidentiality and secrecy with regard to the personal data of the Client to which it has access when operating its Services and within the framework and development of its relations, as well as to respect at all times the legislation in force on the protection of personal data, undertaking to sign, during its validity, development and execution, any documents that may be required by the aforementioned regulations.

The Customer acknowledges and agrees that: (a) Once the Customer has selected its Reseller, the Reseller will be the primary administrator of the services during the activation period of the services and will have administrative privileges and access to the Customer’s data, notwithstanding that the Customer may request administrator privileges from its Reseller; (b) The Reseller may, at its sole discretion and at any time during the activation of the services, terminate its administrator privileges; c) Reseller’s terms and privacy practices with respect to Customer data or any services provided by it are subject to the terms of Customer’s contract with its Reseller and may differ from Kumori’s privacy practices; d) Reseller may collect, use, transmit, disclose and process Customer data – personal or non-personal – on the terms legally established and contractually appropriate under the relationship established between it and the Customer.

The Customer consents to the communication of its data as such by its Reseller to Kumori to enable the activation and provision of the Services subscribed to, and for Kumori to provide the Reseller with the Customer’s data and other information provided by the Customer to Kumori where necessary, for the purpose of ordering, providing, administering and managing the Services.

The Customer authorises Kumori to process the personal data for which it is responsible or in charge in order to execute this agreement, to provide the Services subscribed to and to meet its own legitimate interests, these being the legitimate bases for its processing. In such cases, Kumori undertakes to maintain due confidentiality and secrecy with regard to the personal data to which it may have access or become aware of as a result of this agreement and its execution. 

The data will be processed for the duration of the relationship until its termination, with the exception of data that must be legally or contractually retained.

In the event that the Customer provides third party information, the Customer shall obtain any necessary consent from third parties in accordance with current legislation prior to the provision of such information. Likewise, in the cases required by law, the Client must notify individual users that their data may be processed within the framework of the Services and that they may be disclosed to public and judicial authorities in the cases established by law.

The Services do not permit the hosting of personal data for which the Customer may be responsible for processing by Kumori on behalf of its customers in its capacity as data processor. However, in the event that the Customer requests a trial or fremium version in which it may host applications and their associated databases (if any), whether real or not, Kumori shall not exercise control over the data that may be hosted by the Customer on the Services, which shall be deleted at the end of the period of such versions. In any case, in the event that the performance of the Services in this context may involve the processing of data for which the Customer is responsible or in charge by Kumori and/or its suppliers assigned to the Services on behalf of the Customer, even if it is merely temporary hosting, Kumori undertakes to comply with the confidentiality and privacy conditions set out in its DPA made available for consultation and download, as well as to formalise with its suppliers the correlative and mandatory confidentiality commitments required by the legal framework in force.

The Customer is informed and agrees that Kumori may collect and use technical data and information relating to the access and operation of the Services by the Customer, including, but not limited to, technical information relating to IP, browser and access systems, which may be collected periodically and automatically to facilitate the availability, security and monitoring of the Services.

The Client is informed and consents that conversations between him or his staff and Kumori and its technical service may be recorded in the future, subject to prior warning and information, in order to improve the quality of its services and the security of their provision.

The Client may at any time exercise the rights recognised in the current legal framework with respect to their personal data, including, among others, the rights of access, rectification and, where appropriate, deletion, portability, limitation of processing, by means of a request to Kumori, without prejudice to the rights they may have to make any claim in defence of their rights and interests before the Spanish Data Protection Agency.

The privacy terms and conditions apply only to the Services subscribed to by the Customer under this agreement and therefore do not apply to products and services provided by a Reseller to the Customer, which may differ from Kumori’s privacy terms and practices.      

Annex IV

Exclusions of liability

Kumori shall not be liable for any specific contractual commitments and obligations owed to the Customer by a Reseller or other third parties which have not been accepted by the Customer, nor shall Kumori be liable for the Customer’s systems or for the misuse or improper functioning of the Services by the Customer.

Kumori cannot guarantee the absolute uninterrupted availability and continuous operation of the Services given the state of the art and, in particular, as referred to in previous sections, to the extent that this depends on third parties outside the same, such as providers of hosting services, servers, intermediation, interconnection, connectivity, platform, hosting and access to networks, as well as telecommunications operators.

The Customer is informed and accepts the possible occasional interruptions of services and availability, especially for routine and technical intervention, repair, maintenance, upgrading or security work or any other work that Kumori deems necessary and/or convenient, or that is carried out by other providers who may intervene in the provision of the services, e.g. infrastructure/accommodation.

Kumori may temporarily interrupt access to or availability of the services for reasons of security, restructuring of IT resources or maintenance in order to improve the provision or configuration of the services.

Repair, maintenance or upgrade services, or interventions for technical or security reasons shall be carried out in a way that least distorts the availability of services.

Kumori shall in no case be liable for service interruptions due to causes beyond its control, such as acts of God or force majeure, arising from and/or caused by a third party or derived from the improper use of the same by the Client. Force majeure or fortuitous event shall be considered to be, but not limited to, the delay, failure, suspension or interruption of the services as a result of energy restrictions, blocking of telecommunications or the Internet network, actions or omissions of third parties, telecommunications operators, accommodation, connectivity or service, supply or transport companies or any other causes or circumstances beyond the control of Kumori that prevent the normal execution of this contract.

Kumori shall not be liable for any problems arising from lack of access or related to Internet or network connectivity when they are caused by reasons beyond its control.

Kumori uses virus detection programmes. However, given the state of the art, the provider does not guarantee the absence of viruses or other foreign elements in systems, platforms or networks that may cause alterations in the physical or logical systems of users, software or in the information, electronic documents and files stored or transmitted in the systems and applications involved in the contracted services. Consequently, Kumori shall in no case be liable for any damages of any kind that may derive from the presence of viruses or other elements that may cause alterations in the physical or logical systems, electronic documents or files of the clients.

Kumori takes various protective measures to protect the Services and their contents against computer attacks by third parties. However, Kumori cannot fully guarantee that unauthorised third parties cannot gain access to the Services, especially through the Customer’s or third parties’ systems. Consequently, Kumori shall in no event be liable for any damages that may result from such unauthorised access.

Kumori shall not be liable for the inadequate functioning of the external technological infrastructure on which the platform services are deployed and operated, especially if this is due to maintenance work, incidents affecting telecommunications service operators or infrastructure, system overload not attributable to the provider, defective configuration of the Client’s systems, equipment and applications or their insufficient capacity to support the Services. Kumori is not responsible for failures that occur in communications and networks, and does not guarantee the availability and continuity of the operation of the application, associated tools and services.

Kumori shall also not be liable for failures and/or damages resulting from the incompatibility of the Services with other services, systems or specific software with which interoperability has not been expressly specified.

The Customer is solely responsible for the proper use and management of the applications and services made available to it and its information systems, including equipment and applications. Kumori shall not be liable for the use of the Services by the Customer, especially in the case of uninformed, unrelated or unauthorised use.

The Customer is responsible for the use of the Services. Kumori does not have prior control over the use that customers make of the Services and their contents, does not intervene in the creation, transmission and availability of the same through the Services and does not exercise any type of prior control that guarantees the legitimacy, legality, infallibility, usefulness and validity of the contents accessible, stored, generated, disseminated or transmitted through the Services, for which reason Kumori declines any type of liability that may arise from this.

Kumori does not guarantee and shall not be liable in any case for the use that the Client, its internal users and/or third parties may make of the Services, nor for any damages, direct or indirect, that may arise from the use of the same.

Kumori shall not be liable for any damages, loss of business, revenue or profits, consequential damages, lost profits or business opportunities, cost savings or loss, alteration or deterioration of data, files or any other information in connection with the use of the Services and their functionalities.

The Client is responsible for compliance with the terms and conditions of use of the Services, as well as with any current regulations that affect them in relation to the use of the same, including regulatory requirements in terms of privacy, consumer and user protection, industrial and intellectual property, the right to honour, privacy and one’s own image or unfair competition. Under no circumstances shall Kumori be liable for non-compliance by the Client, its users or third parties of the regulatory requirements that respectively affect them, and it may not transfer to the former the obligations established for them by the legislation in force at any given time.

Kumori shall not be liable when it communicates Customer information to a third party on the instructions of the Customer in accordance with these terms and conditions or in the context of and for the provision of the services.

Kumori shall in no event be liable for any costs, penalties, compensation, damages or losses arising as a result of the Client’s failure to comply with its obligations, nor for the content, use and publication of information and communications made or distributed through the Services by the Client or its users.

The Client shall be liable for any administrative, judicial or extrajudicial claims brought by any entity or person against the Client and/or against Kumori arising from the commission of legal infringements by the Client and related to the Services, or from infringements of the conditions of access and use of the Services, infringement of third party rights or regulatory requirements by the Client, and the Client shall be solely responsible for any expenses, costs and indemnities that may be incurred by Kumori in connection with such claims.

In no event shall either party be liable for loss of revenue or indirect, special, incidental, consequential, punitive or exemplary damages for which the other is liable, or for damages for loss of profits, loss of revenue or anticipated profits or anticipated business savings, business interruption or loss of business information, regardless of cause or any theory of liability. These limits of liability shall apply to the fullest extent permitted by applicable law, but shall not apply to obligations owed by one party to the other party for claims received from third parties or for the infringement by either party of the other party’s intellectual property rights.

Any limitation or exclusion of liability shall in no way affect any mandatory legal liability under applicable law that would prevent the application of such limitation or exclusion.