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Komodo CMS Terms of Service

1. KOMODO CMS - TERMS OF SERVICE

1.1 The following terms and conditions (agreement) between Komodo CMS Pty Ltd (ABN 35 080 392 865) and you as an individual and where appropriate, as an authorised employee or agent of a legal entity that you represent, govern the use of Komodo CMS (the service). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

1.2 By clicking the ‘I Accept’ button displayed at the base of this agreement, or by using the service, you are confirming your eligiblity and authority to access the service and your agreement to these terms and conditions. The service is offered to you conditional upon your acceptance of this agreement. If you do not agree to be bound by this agreement, you must select the ‘I Decline’ button and may not use the service.

1.3 Where acceptance is indicated electronically, you agree to waive any claim or right that you may have to assert that electronic acceptance is not the equivalent of, or deemed as, a valid signature to this agreement.

1.4 For reference and interpretation, a definitions section is included at the end of this agreement.

2 USER RIGHTS AND SERVICE OWNERSHIP

2.1 The service is owned by us and is copyrighted and licensed under subscription — not sold. We do not transfer any ownership rights and reserve all rights not expressly granted or required by law.

2.2 Komodo CMS grants you a revocable, non-exclusive, non-transferable worldwide right to use the service during the subscription period, provided that you comply with the terms of this agreement.

3 SERVICE USE – RESTRICTIONS AND REQUIREMENTS

3.1 The service is offered under subscription. You are entitled to use the service as it applies to your subscription level.

3.2 Unless expressly permitted in writing by a Director of Komodo CMS, detailing the nature of the exception, you may not, nor will you allow any third party to:

i. Reverse engineer, de-compile, disassemble or alter the service, or otherwise attempt to discover the source code of the service.
ii. Transfer, sub-license, sell, rent, lease, lend, duplicate, or otherwise translate the service.
iii. Copy any ideas, functions, features or graphics from the service for any purpose, including but not limited to development of a similar service.
iv. Provide commercial hosting using the service, including charging for access to the service.
v. Access the service if you are a direct competitor.
vi. Remove or obscure any trademarks, notices, source code or similar components, including the Komodo CMS icon and web-link, that appear as part of the service.
vii. Use the service for a purpose where the failure of the service or a part of the service could lead to personal injury, death or severe physical or environmental damage.
viii. Tamper with or attempt to bypass functionality that operates to enforce this agreement, including the prevention of software piracy, unauthorised use, or to enforce the subscription level and subscription period of the service.
ix. Use, post, transmit or introduce any software, routine or device that interferes or attempts to interfere with the operation, integrity or performance of the service, or attempts to gain unauthorised access to the service.
x. Use the service to track, collect, or otherwise use personally identifiable information of visitors or users of your website(s) that is in breach of privacy laws relating to your jurisdiction or otherwise applicable to your use of the service.
xi. Store infringing, obscene, threatening, libellous or otherwise unlawful or tortious material, including material harmful to children or violating third party privacy rights.
xii. Send or store material containing software viruses, worms, or other harmful computer code, files, scripts, agents or programs.

3.3 You are required to:

i. Operate the service under the terms of this agreement and in a manner consistent with the operational instructions relevant to your subscription level and access rights.
ii. Comply with all applicable laws and regulations in your use and access of the service.
iii. Protect your password(s) and take responsibility for all activities that occur under your account(s). You agree to notify Komodo CMS immediately upon learning of any misuse of your account or similar breach of security.
iv. Consent to access of the service by Komodo CMS support staff for the purpose of maintaining, improving or providing assistance with the service.
v. Publish and reproduce only such material as you are legally permitted and authorised to publish and remove any unauthorised or disputed content.
vi. Enforce payment obligations and this agreement in relation to other users provided access to your service, where you are responsible for administration of the service.
vii. Acknowledge and consent to our right to suspend or terminate this agreement and your access to the service should your account become delinquent (fall into arrears).

4 WARRANTIES AND REPRESENTATIONS

4.1 Komodo CMS warrants that the service will, under normal use and circumstances, perform in a manner consistent with industry standards applicable to web publishing services and substantially in accordance with our description of the service for the specified subscription level. This warranty is valid during the subscription period and does not apply if the failure has resulted from your breach of the agreement or the actions of a third party. If you notify us in writing, we will at our option, either repair, or refund the price paid for the service. To the maximum extent permitted by law, this is your exclusive remedy for any failure.

4.2 You represent and warrant that you have the legal power and authority to enter into this agreement and that you have not falsely identified yourself.

4.3 The service is provided ‘as is’ and to the full extent permitted by law, we disclaim and exclude all representations, warranties and conditions, whether express, implied or statutory, other than those identified expressly in this agreement, including but not limited to warranties, timeliness, quality, accuracy, merchantability and fitness for purpose.

4.4 Komodo CMS may make improvements or changes to the service at any time, with or without notice. Other than as expressly identified in this agreement, Komodo CMS does not represent or warrant that the service will be uninterrupted or error free, that defects will be corrected, or that the service is free of viruses or other harmful components. Komodo CMS does not warrant or represent that the use of the service will be correct, accurate, timely or otherwise reliable. You specifically agree that Komodo CMS shall not be responsible for unauthorised access to, or alteration of, any data on your website(s) or stored in the service.

4.5 Komodo CMS does not guarantee that the service will be operable at all times or during any down time caused by outages to any public internet backbones, networks or servers, caused by any failures of your equipment, servers, or local access, for scheduled maintenance, or relating to events beyond our control, including but not limited to strikes, riots, insurrection, fires, floods, explosions, war, government action, labour conditions, earthquakes, natural disasters, or interruptions to internet services to an area where Komodo CMS or your servers are located.

5 PRIVACY AND MARKETING POLICY

5.1 Komodo CMS privacy policy may be viewed at http://www.komodocms.com/PrivacyStatement. We reserve the right to modify our privacy policy at our reasonable discretion or as required by law.

5.2 By clicking the ‘I Accept’ button when accessing the service, you agree to us storing your contact information and sending marketing, notifications, instructional and other service related items. You may opt out of non-critical communications at any time by changing your user account settings or notifying us by email, however we reserve the right to send important user communication at our absolute discretion.

5.3 Komodo CMS reserves the right to disclose client business names and subscription levels, including the publishing of publicly available summary information on our website and in other Komodo CMS marketing material.

5.4 You may market the nature of your service use during the subscription period.

6 SERVICE INDENTIFICATION MARKS

6.1 The service includes identification marks in the source code and a ‘Powered by Komodo CMS’ icon and web link included on at least the primary page of each domain published using the service. These marks identify the ownership of the service and provide marketing that ultimately improves the quality of the service for all subscribers.

6.2 Komodo CMS may at our discretion remove identifying marks for certain service installations. Any such exemption must be in writing and is subject to the payment of a scheduled identification removal fee.

7 INTELLECTUAL PROPERTY OWNERSHIP

7.1 Komodo CMS alone (and component licensors where applicable) own all right, title and interest, including all intellectual property rights in the service. This agreement does not constitute a sale, and does not convey any transfer of property or rights. We retain all service ownership, copyright, moral rights and other intellectual property rights pertaining to all components of the service unless otherwise stated or exempted in writing and signed by a Director of Komodo CMS. All rights not expressly granted to you in this agreement are hereby expressly reserved and retained by Komodo CMS without restriction.

7.2 We provide support and feedback mechanisms to improve service quality. By using any such mechanism or providing ideas, suggestions, requests, feedback or other similar recommendations, whether solicited or not, you agree that all such content is not confidential and becomes the sole property of Komodo CMS without compensation or attribution.

7.3 Ownership, copyright, moral rights and all other intellectual property rights pertaining to content entered into the service for publication, storage, manipulation or other purposes rests with the legal owner of the content and is in no way altered by the terms of this agreement or the nature of the service.

7.4 We warrant that any intellectual property embodied in the service is either the sole property of Komodo CMS or that we are legally entitled to use such intellectual property for the provision of the service.

7.5 You warrant that you are the owner or otherwise legally entitled to use content stored in or delivered by the service. Furthermore, you indemnify us against any action, claim, suit or demand for, or liability to pay compensation or damages and costs or expenses arising from any breach by you of any third party’s intellectual property and related rights.

7.6 Komodo CMS does not own any data, information, or material that you submit, store or publish in the course of using the service. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and usage rights for all such material. Komodo CMS shall not be responsible or liable for deletion, correction, destruction, damage, loss or failure to store any such material. In the event of termination, other than by reason of your breach, Komodo CMS will make available within 30 days, at your request, a file or files of your material in the available condition at the time of the request. Upon termination for cause, your right to access any material using the service immediately ceases and Komodo CMS shall have no obligation to maintain or forward any such material.

8 LIMITATION OF LIABILITY

8.1 To the maximum extent permitted by law, our liability for direct damages will be limited to the amount you have paid for the product. The limitation contained in this paragraph will not apply with respect to:

i. our obligations to defend third party claims of patent, copyright, trademark or intellectual property infringement;
ii. our liability for gross negligence or wilful misconduct, to the extent caused by us and awarded by a court of final adjudication;
iii. our confidentiality obligations.

8.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, KOMODO CMS WILL NOT BE LIABLE TO ANY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNATIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF KOMODO CMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.3 By using the service, you may directly or indirectly enter into agreement or relationship with third parties. Any such activity is solely between you and the third party, and Komodo CMS shall have no liability, obligation or responsibility for any such agreement or relationship. We do not endorse any Internet sites that are linked through the service and are provided as a matter of convenience; in no event shall Komodo CMS be responsible for any products, services or other material available from such sites.

9 TERMINATION

9.1 This agreement will terminate immediately if you fail to comply with the terms contained herein. Upon such termination, you must cease further use of the service unless you have obtained the express written consent of Komodo CMS. Otherwise, this agreement will remain in effect until terminated as detailed below.

9.2 This agreement may be terminated by you at any time and for any reason. Upon termination, Komodo CMS will cease providing the service. You will not be entitled to any refunds of any fees, and any unpaid amounts for the remainder of the current subscription period will be immediately due and payable. In the event that the agreement is terminated during the initial subscription period and prior to the first live publication of the first website, we will reduce the subscription amount by thirty percent, repaying this amount or reducing the amount outstanding.

9.3 Komodo CMS may terminate this agreement at the completion of a subscription period, by providing 60 days notice in writing and continuing to provide the service for a further 90 days after termination. At your request, during this 150-day period, we will provide a single copy of content stored using the service, in a manner determined by us, and provide unused support or paid support as required to assist transition to an alternative service. This transitional support will not be provided if you are in breach or your subscription is delinquent. We do not warrant that another service will perform in replacement of the service.

10 BILLING, RENEWAL AND SUSPENSION

10.1 Komodo CMS charges and collects annually in advance for use of the service (subscription). The billing period (subscription period) is per annum, unless adjusted by mutual agreement in writing.

10.2 The payment amount is determined by the subscription level, the subscription period, and any added expansion modules, custom work and other commissioned elements, technologies, functionality and services. The payment amount will be calculated from the Komodo CMS schedule of services or ‘as-quoted’.

10.3 Komodo CMS reserves the right to modify the schedule of fees and charges at any time, and any such change will come into effect immediately for new service installations and upon the subscription anniversary (renewal) for existing services.

10.4 Where you are responsible for payment, you agree to provide Komodo CMS with complete and accurate billing and contact information and pay all fees and charges as they become due and payable.

10.5 If any authority imposes a duty, tax, levy or fee upon the service, then you agree to pay the amount specified or supply us with exemption documentation.

10.6 In so far as the subscription is not delinquent and this agreement remains in force, your subscription will be automatically renewed upon the completion of the subscription period, and where you are responsible for payment, you will be invoiced in accordance with the schedule of fees in force at that time, excepting the case where your service is subject to a quotation or pricing agreement signed by a Director of Komodo CMS. Any such negotiated pricing terms are confidential and may not be disclosed to a third party.

10.7 If you believe your invoice is incorrect, you must contact us in writing within 30 days of the invoice date to be eligible to receive an adjustment or credit.

10.8 Whether you are responsible for payment or not, you hereby acknowledge and accept that payment control mechanisms form part of the service and that we may exercise, at our discretion, reduced service delivery or service cancellation for delinquent accounts. You are responsible for ensuring the continuance of your account and compliance with this agreement. Unless otherwise notified and agreed, Komodo CMS will restrict content publishing on accounts that are delinquent by 45 days, restrict storage and editorial access on accounts that are delinquent by 60 days, and remove websites from public access that are delinquent by 90 days (suspension). Services and related accounts that are suspended (delinquent by 90 days) are in breach of this agreement and we reserve the right to impose a reconnection fee in the event that you thereafter request renewed service access.

10.9 Komodo CMS provides service pricing in Australian Dollars (AUD) for Australian customers and United States Dollars (USD) for all other customers. You are required to pay in the invoiced currency and may not use foreign exchange differences or fluctuations to arbitrage these currencies and service pricing.

11 SPECIFIED OPERATING ENVIRONMENT

11.1 Komodo CMS provides hosting, deployment and support as scheduled for your subscription level. Where you forgo these services in favour of a third party hosting provider, we reserve the right to charge for time and materials involved in supporting your decision and we also reserve the right at our absolute discretion to reject third party service provision for any reason, including but not limited to jurisdiction, competitive risk, quality and operating environment.

11.2 It is a condition of this agreement that where third party hosting provider(s) or internal hosting is selected, the underlying software is deployed and used in conjunction with the specified operating environment relevant at the time of deployment. Failure to meet this condition is a breach of this agreement, specifically voiding any service warranty.

12 UPGRADES

12.1 The service includes annual functional upgrades and ad hoc maintenance upgrades at no additional charge, including relevant training and transitional services subject to the terms of this agreement.

12.2 Where you are authorised to act on behalf of the entity that acquired the service (parent account), you may elect to upgrade your service subscription level (lite, professional, premium or platinum) or add expansion modules at any time for payment of the pro-rata difference in scheduled fees. Installed upgrades require extension of the minimum subscription term by a further twelve months from the date of the upgrade.

13 CONFIDENTIAL INFORMATION

13.1 Confidential information means information identified in writing as proprietary or confidential, and includes non-public information regarding either party’s products, marketing, promotions, business processes, financial data and negotiated terms of agreement. Confidential information does not include information:

i. the recipient developed independently,
ii. the recipient knew before receiving it under the relevant agreement, or
iii. information which becomes public other than by a breach of the obligations in this agreement.

13.2 Neither party will use the other’s confidential information without the other’s written consent except:

i. in the furtherance of this business relationship,
ii. to obtain advice from legal or financial consultants,
iii. as required by law.

13.3 Both parties will take reasonable precautions to safeguard each other’s confidential information, at least equivalent to those used to safeguard their own confidential information. In the event of discovery of unauthorised disclosure of information, the discovering party will notify the other and cooperate in any reasonable way to regain possession of the information and minimise potential loss.

14 NOTICES

All notices, requests and communications pertaining to this agreement must be sent by email to the address provided in your account and in the case of Komodo CMS to terms@komodocms.com. Alternatively, notices may be sent by post or express courier to the normal business address of the relevant party.

15 ASSIGNMENT

Neither party may assign this agreement in whole or in part without the written consent of the other.

16 US GOVERNMENT RIGHTS AND RESTRICTED EXPORT

16.1 If the service is being acquired by or on behalf of the US Government or by a US Government prime contractor or subcontractor in accordance with 48 C.F.R. 227.7202-4 (for Department of Defence (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the service, including its rights to use, modify, reproduce, release, perform, display or disclose, will be subject in all respects to the commercial license rights and restrictions provided in this agreement.

16.2 Komodo CMS will not export to, and will terminate service agreements with, customers in jurisdictions that are embargoed by either the United States or Australian Governments.

16.3 Komodo CMS at its absolute discretion may choose not to export the service or allow the creation of access accounts in jurisdictions deemed by us to prevent our reasonable enforcement of this agreement or present unacceptable intellectual property or service quality risk(s).

17 MODIFICATIONS TO THE TERMS OF SERVICE

Komodo CMS reserves the right to change or modify any of the terms and conditions of this agreement, by posting this agreement within the service and requiring your renewed acceptance, or by email to the address provided within your service account.

18 SEVERABILITY

If any provision of this agreement is held to be illegal, invalid, or unenforceable, the remaining provisions will remain in force and effect and the parties will amend the agreement to give effect to the stricken clause to the maximum extent possible.

19 WAIVER

No waiver of any breach of this agreement shall be a waiver of any other breach. No waiver shall be effective unless made in writing by the waiving party.

20 FORCE MAJEURE

To the extent that either party’s performance is prevented or restricted for reasons beyond that party’s control, then that party will not be liable, so long as reasonable performance is resumed as soon as practical after the cause no longer exists.

21 SURVIVAL

Provisions regarding service use, restrictions on use, warranty, limitation of liability, confidentiality and intellectual property will survive the termination of this agreement.

22 NON-EXCLUSIVITY

This agreement is non-exclusive.

23 APPLICABLE LAW

This agreement is entered into in the State of Victoria, Australia, and you agree that all matters, including all disputes, shall be governed and construed in accordance with the laws of the State of Victoria, and waive any objection to such a jurisdiction or venue.

24 DEFINITIONS

‘the service’, depending upon context, includes all products and services delivered to you by us, including but not restricted to the Komodo CMS application, expansion modules, custom development, technical infrastructure, support, training, communication materials, upgrades, consultancy and other services, normally as part of a subscription.

‘subscription level’ is the edition of the service to which you or your organisation are subscribing (usually one of lite, professional, premium, platinum or custom) and defines the base subscription price, included features and other components of the service. You are not entitled to access service components not included in your subscription level as detailed on the Komodo CMS website and altered from time to time.

‘subscription period’ is the term of the initial and subsequent license period, normally one calendar year unless otherwise agreed.

‘product development agreement’ or ‘pda’ is a further agreement, executed only by a Director of Komodo CMS, allowing you, or your organisation, or an authorised third-party to undertake technical, development, or other service activities normally not permitted under this agreement. A PDA waives only the terms explicitly detailed.

‘Komodo CMS’, ‘our’, ‘we’ or ‘us’, means Komodo CMS Pty Ltd and its affiliates and agents, or depending upon context, the service delivered by Komodo CMS. Depending upon context, it may also mean the product and related deliverables, the service, the brand, trademark or other intellectual property owned by Komodo CMS.

‘you’ and ‘your’ refers to the individual who has entered into this agreement in order to use the service and where this individual has the authority to bind the purchasing entity to this agreement, includes the purchasing entity, its agents and affiliates.

‘Application’ means the specific version and subscription level of the service, and where applicable, related deliverables or third-party software applications.

‘Anonymous user’ or ‘visitor’ is a user who has public or generally available access to the web pages produced by the service and is not issued a username or password, and who does not have access to the content management or administrative functions of the service. An anonymous user is not a user of the service and is not party to this agreement.

‘User’, ‘Authenticated user’, ‘Account’, ‘Service user’ is an editor, publisher, administrator or otherwise identified and authorised user of the service who accesses the content management or administrative functions of the service using a password and username. The number of such users is limited by the product subscription level and such users are required to execute these terms of service both individually and, where applicable, on behalf of the organization.

‘parent account’ is an editor, publisher, administrator or otherwise identified and authorised user of the service who has the authority to bind the subscribing organization and make administrative, contractual and service provision decisions on behalf of the organization and subordinated accounts.

‘Installation’ means, depending upon context, a deployed version of the service, or the process, settings and act of installing and deploying the service or service components, or a specific installation of the product, such as your installation.

‘Modules’ are additional components purchased to add functionality to the service.

‘Software’, depending on context, means the service, the source code of the service, an installation, other third-party software, or other software required for the proper operation of the Komodo CMS service.

‘Use’ means to copy, install, use, access, display, run or otherwise interact with the service.