1.1. “Account” means an online account registered by you for the purpose of using the Services.
1.3. “Customer Data” means any data stored in files, data, material and information submitted, uploaded and stored by You through the Service.
1.4. “Platform” means the Kubeshark deployment that is used for traffic observability and the Kubeshark Admin Console.
1.5. “Services” means any applications, products, services, documentation, and software made available through the Platform.
1.6. “Third Party Service” means any service, products, software or application that is provided by a third party and interoperates with a Service.
1.7. “Account Data” means data relating to Your use of the Platform and Services, including but not limited to information related to:
1.7.1. Your contact and payment information, including email addresses and credit card or other payment remittance information,
1.7.2. Information obtained by or provided through the Service,
1.7.3. Your Customer Data;
1.7.4. Settings, preferences chosen, and resource usage,
1.8. “We”, “Us”, “The Company”, “Kubeshark” or “Our” means KubeHQ, Inc.
1.9. “You” or “Customer” means the company or other legal entity and its affiliates for which you are accepting these Terms.
2. The Services
2.1. Access to the Platform. Following the initial registration of an Account or without registration of an account (anonymous use), and for the duration of the Term, you will have a limited, revocable, non-transferable, non-exclusive license to access and use the Services through the Platform solely for the purpose of your business activity. We may update the Services from time to time, including adding or removing functions, in our sole and absolute discretion.
2.2. Software. Some Services may require you to download software. If any software is offered under an open source license, we will make the license available to you and the provisions of that license shall apply notwithstanding any provisions to the contrary under these Terms.
3. Use Obligations and Restrictions
3.1. Obligations. You agree to do each of the following in connection with your use of the Services: (i) comply with all applicable laws, rules and regulations, including those regarding data privacy, intellectual property rights and export control, and with these Terms;(ii) pay the fees for the Services, if applicable, when due; (iii) use reasonable security precautions for providing access to the Services by your users, customers or other individuals to whom You provide access. All users are required to obtain a valid license from the Company prior to accessing or using the platform. The use of the platform without a proper license is strictly forbidden.
3.2. Restrictions. You must not misuse the Services. For example, you may not, whether by yourself or anyone on your behalf (a) sell, resell, or lease the Services or access or attempt to access the Services by any means other than the interface we provided or authorized; (b) circumvent any access or use restrictions put into place to prevent certain uses of the Services; (c) use the Services to store, share or transmit Customer Data which is unlawful, infringing, harmful or which violates any person’s rights, including privacy rights and intellectual property rights; (d) attempt to disable, impair, or destroy the Services, or Platform; (e) reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so; (f) copy, modify, adapt, translate or otherwise create derivative works of the Services; (g) remove any proprietary notices or labels from the Services; (h) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; (i) use the Service for the purpose of generating a similar or competitive product; (g) test the Service or use the Service in connection with any benchmark tests, evaluation, or any other tests of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without our prior written approval; (h) directly take any action to contest our intellectual property rights or infringe them.
4.1. Using the Services. The charges for the Service (“Fees”) will be communicated to you via a digital medium (e.g., email, Slack), verbally, or as specified on the Platform corresponding to the Services plan you select (the “Plan”). You agree to pay, and you authorize the Company (or any of its resellers) to charge your chosen payment method for all applicable Fees as described in the Plan. Unless required by law, Fees are non-refundable.
4.2. Payment Terms. Charges for the Fees will be billed either in advance or in arrears, as detailed in the Plan, and may be on a monthly, yearly, or any other billing frequency as provided by the Company in the Plan.
4.3. Billing Information. You are responsible for maintaining accurate billing and contact details and promptly updating us about any changes to such information. The Company may employ a third-party service provider for billing purposes. We reserve the right to suspend or terminate Services if payments are overdue.
4.4. Taxes. Our charges do not encompass taxes, levies, or duties such as value-added tax, sales or use tax, and other similar charges. We will apply taxes only if mandated.4.5. Payment Policy. You grant the Company, directly or through third parties, the authority to undertake necessary inquiries to verify your identity or prevent fraudulent activities. This might include a request for government identification (like a driver’s license or passport), your birth date, and additional details essential to confirm the legitimacy of your email or payment method linked to your Account (e.g., credit card, debit card, or PayPal account). We may use various billing service providers. When using such provider’s services, You agree to follow and comply with the policies of such provider. When you provide payment method details, you verify your authority to use that method, and you authorize us and our designated payment processor to charge the complete amount for the selected Plan to the chosen payment method. All transactions are final, with no refunds or credits available. We will actively address any payment processing errors we identify, which may involve adjusting the original payment method you used to ensure the accurate amount is charged.
5. Registration and User Account
5.1. Establishing an Account. You must register and establish an Account in order to use our Services. You may elect to have multiple Accounts, and may set up multiple Users (as defined below) for each Account.
5.2. Account Information. You must safeguard and not disclose your Account username and password and you must supervise the use of such Account. You must provide us with accurate and complete information in order to create an Account. You agree to keep your Account information up to date and accurate. YOU ARE SOLELY AND FULLY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF THE ACCOUNT USERNAMES AND PASSWORDS. YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ALL ACTIVITIES THAT OCCUR UNDER THE ACCOUNT. You must notify us immediately of any unauthorized use of your Account or any other breach of security.
5.4. Deletion of Account. You may delete your Account at any time. Any Content and other information and data entered into the Services may be permanently deleted if you delete the Account, provided we may retain certain information as required to comply with our legal obligations, resolve disputes and enforce our agreements (unless we are instructed otherwise). For the avoidances of doubt, any Fees paid will not be refundable even if You delete the account.
6. Your Content
6.1. License to Information. Through using the Services, the Services may send us certain telemetric information ("Content”). You can opt out of this at any time, however, if you choose not to opt out, by doing so you grant us a worldwide, non-exclusive license to host, copy and use your Content as required in order to provide You with the Services, and make improvements to the Services. Subject to this limited license we do not acquire any right in your Content and You or your licensors retain all rights and ownership to your Content. You warrant that You have full rights to provide to us any Content that You provide through the Services.
6.2. Responsibility for Content. The Services are not intended to be used as storage, backup or archiving services. It is your responsibility to back up your Content and you are responsible for any lost or unrecoverable Content.
6.3. Deletion of Content. Within 30 days following your request to delete your Content, the Company shall delete it.
7. Intellectual Property Rights
7.1 Use of the Services and Platform is governed by the terms of the License (available at https://docs.kubeshark.co/en/license). Without derogation therefrom, the Company, or as the case may be, its licensors, own and shall at all times retain all right, title, and interest in and to the Services and Platform, including all know-how, components, materials, software and technical innovations that provide the Platform, as well as in all modifications, enhancements, and updates thereto, all intellectual property rights, and the trademarks, service marks, and logos contained therein, including if such modifications, enhancements, and updates are made in response to Feedback (as defined below). Nothing in this Agreement shall be interpreted to provide You with any rights in the Services or the Platform except the limited rights set forth in Section 2 and in the License. Nothing in this Agreement shall restrict Our right to use, profit from, disclose, publish, keep secret or otherwise exploit Feedback, including, without limitation, to develop and improve the Platform or Services, without compensating or crediting the User.
7.3 All trademarks are (registered) trademarks of their respective owners. Without derogating from the Company’s right to exploit the Feedback as set forth below, nothing in this Agreement shall be interpreted to provide Us with any rights in the Content except the limited rights with respect as set forth in Section 6.
7.2. Feedback. To the extent You provide us any feedback, comments or suggestions (“Feedback”), you grant us a royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into the Services or any of our current or future products or services.
You will indemnify, defend, and hold harmless the Company, its affiliates, resellers, employees and agents (the “Indemnified Parties”) from and against all liabilities, damages, and costs (including reasonable attorneys’ fees) arising out of any claim, demand, suit or proceeding by a third party alleging that your Customer Data or your use of the Services infringes or misappropriation a third party’s intellectual property rights or violates applicable law or that your use of the Services is in violation of these Terms.
9. Disclaimers of Warranties
9.2 THE SERVICES ARE PROVIDED ON AN “AS IS”, AND “AS AVAILABLE” BASIS, AND THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO RELIABILITY OF SERVICE, WARRANTIES OF NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. WE DISCLAIM ALL LIABILITY AND ANY OBLIGATIONS FOR ANY HARM OR DAMAGE CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS.
9.3. OTHER THAN AS EXPRESSLY STATED IN THE TERMS WE DO NOT WARRANT THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF DEFECTS.
10. Limitation of Liability
10.1. IN NO EVENT WILL THE COMPANY BE LIABLE FOR (I) INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR (II) LOSS OF PROFITS OR REVENUE, LOSS OF DATA, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL, IN EACH CASE ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. IN NO EVENT WILL THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR TO THE SERVICES EXCEED AN AMOUNT OF US$100.00.10.3. THESE LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.1. Each party (a "Disclosing Party") acknowledges that it may have access to, and the Disclosing Party may disclose to the other party (the "Receiving Party"), certain valuable information belonging to and relating to Disclosing Party, which Disclosing Party considers confidential, including, but not limited to, information computer programs, user manuals, sales and marketing plans, business plans, processes, customer lists and other trade secrets. Receiving Party shall not disclose such confidential information to third parties, shall not use such confidential information for its own benefit except to the extent required or permitted hereunder, and shall not disclose such confidential information to or use such confidential information for the benefit of third parties. Receiving Party shall disclose confidential information only to those of its employees who need to know such information for the purpose of this Agreement and shall ensure that its employees observe the confidentiality obligations in this Section 6. Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information.
11.2. This Agreement shall impose no obligation of confidentiality upon Receiving Party with respect to any portion of the confidential information which: (i) now or hereafter, through no act or failure to act on Receiving Party's part, becomes generally known or available; (ii) is known to Receiving Party at the time Receiving Party receives same from Disclosing Party as evidenced by written records; or (iii) is hereafter furnished to Receiving Party by a third party as a matter of right and without restriction on disclosure as evidenced by written records. (iv) was independently developed by the Receiving Party without reliance on the confidential information as evidenced by written records. Notwithstanding the foregoing, under all circumstances all benchmarks and other information regarding the results of Your use of the Services and the Platform and any communications and reports prepared under these Terms including the Feedback shall be deemed the Confidential Information of the Company, and shall be subject to all non-disclosure and non-use restrictions herein.
11.3. In the event that Receiving Party is required to disclose confidential information of the Disclosing Party pursuant to any Law, regulation, or governmental or judicial order, the Receiving Party will, to the extent permitted; (a) promptly notify Disclosing Party in writing of such Law, regulation or order, and (b) reasonably cooperate with Disclosing Party in opposing such disclosure.
12. Permission to Use Company Name and Logo
12.1 By using the Platform or Services, you grant us permission to display your company name and logo on our website and in promotional materials, including in our customers list in the Company’s website, and use your logo for such purpose.
12.2 If you disagree with this clause, please notify us, and we will exclude your name and company name from our marketing materials.
12.3 We will handle all mentions with respect and ensure no third-party rights are violated.
13. Term and Termination
13.1. Term. These Terms commence on the date you first accept them and will remain in effect until these Terms are terminated or until the date which is specified in the Plan (the “Term”). The Company may change the Terms from time to time, and such change will become effective upon the date on which it is posted on the Company website. You are responsible for checking the website regularly for such changes. By continuing to access or use the Services you agree to be bound by the revised Terms.
13.2. Termination. We may terminate the Services and your Account on 30 days prior written notice to you. You may stop using the Services at any time and you may delete your Account. We may suspend or terminate your access to the Services at any time at our discretion and without notice if You do not comply with these Terms. Upon termination of the Services to You, the Account will be terminated, and from the date of termination You will no longer be able to access your Account.
13.3. Survival. The provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Without limiting the generality of the foregoing, the Intellectual Property Rights, Disclaimers of Warranties, Limitation of Liability, Usage Restrictions and License Compliance, Governing Law and Jurisdiction and General sections, will survive the termination or expiration of the Terms.
14. Governing Law and Jurisdiction
These Terms are governed by the laws of the state of New York excluding rules as to choice and conflicts of law, and the courts in the state of New York will have jurisdiction; however, the Company or its Affiliate may bring suit for payment or for injunctive relief in the country where Your entity is located. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
15.1. Export Restrictions. The Services may be subject to export laws and regulations of the United States and other jurisdictions. You will not permit users to access or use the Services in any country which is subject to an embargo by the United States and shall not use the Services in violation of any other export restriction. In addition, You shall not provide the Services to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
15.4. Severability. If any part of these Terms is deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the rest of these Terms and shall not affect the validity and enforceability of any of the remaining provisions of these Terms. In such cases, the part deemed invalid or unenforceable shall be construed in a manner consistent with applicable law to reflect, as closely as possible, the original intent of the parties.
15.5. Waiver. No waiver by us of a breach of any of the provisions of terms of these Terms shall be construed as a waiver of any preceding or succeeding breach of any of the provisions of these Terms.
15.6. Relationship. Nothing in these Terms shall be construed as creating any agency, partnership, trust arrangement, fiduciary relationship or any other form of joint enterprise between you and the Company.15.7. Entire Agreement. These Terms contain the entire agreement between the Company and You relating to your use of the Services and supersedes any and all prior agreements between the Company and You in relation to the same. You confirm that, in agreeing to accept these Terms, You have not relied on any representation except as has expressly been made by the Company in these Terms.
15.8. Assignment. You may not assign your rights or delegate your obligations under these Terms without the Company’s prior written consent. Any purported assignment contrary to this section will be null and void.
15.9. No Third Party Rights. There are no third-party beneficiaries to these Terms. Without limiting this section, users are not third-party beneficiaries to your rights under these Terms.
Last Revised: November 5th, 2023