CLOUD SERVICES AGREEMENT AND WARRANTY STATEMENT
(End-User Cloud Services/Redistribution Prohibited)
KALUARI LIMITED IS WILLING TO ALLOW ACCESS OR USE OF THE SERVICES (AS HEREINAFTER DEFINED) AND ANY RELATED SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SERVICES AGREEMENT. PLEASE READ THE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES, AS ACCESSING OR USING THE SERVICES (AND ANY RELATED SOFTWARE) WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU DO NOT AGREE WITH THESE TERMS, THEN DO NOT ACCESS OR USE THE SERVICES AND ANY RELATED SOFTWARE.
1. The Services.
This Terms of Service is an agreement between you (“you”, “user”, “client”,”customer”) and Kaluari Limited (“Kaluari”, “we”, “us”). This POLICY sets forth the general terms and conditions of your use of the products and services made available by us and on our websites (collectively, the “Services”). This POLICY governs the use of Kaluari Limited’s services – Cloud server hosting, Cloud backup & disaster recovery as a service, MaiSafi Email and Collaboration (email hosting), MailSafi Email Security, MailSafi Email Archiving, Domain Registration, Domain Hosting, Website Hosting, Website Design and any training programs offered by us. Violation of this POLICY may result in suspension or termination of your service. In the event of a dispute between you and Kaluari Limited regarding the interpretation of this POLICY, Kaluari Limited’s interpretation, in its reasonable commercial judgment, shall govern.
The following is the entire TERMS OF SERVICE agreement between Kaluari Limited and the personal or corporate account holder. Kaluari provides cloud email and collaboration (email hosting), email security, email archiving, domain registration, domain hosting, website hosting, web design and cybersecurity training. Kaluari has certain legal and ethical responsibilities consisting with the use of its servers and equipment involved in these services. Kaluari’s general policy is to act as a provider of internet presence. Kaluari reserves the rights to suspend or cancel a client’s access to any or all services provided by Kaluari when we decide that the account has been inappropriately used
2. Terms and Termination.
The permitted use of the Services granted herein shall be term-limited in accordance with the documents that accompanied your purchase (the “Subscription Term”) unless renewed or terminated by either party for material breach (whichever is the earlier). We may end or suspend your rights to use the Services at any time if we determine that you have breached these terms in a serious way. If what you have done can be put right, we will give you a reasonable opportunity to do so.
If the Agreement terminates for any reason or expires, you will not be authorized to use or access the Services, including any online storage or backup services, and we may cancel and/or close your account at our sole discretion. It is your responsibility to store or backup your content elsewhere before this Agreement expires or is terminated as upon such an event, we may delete all of your online content provided to us. Use of the Services, at any time, is governed by the terms of this Agreement.
3. Cancellation
Cancellation requests need to be placed by writing cancellation requests on email to be considered a legitimate request.
If you choose to cancel or terminate this Agreement other than at the end of the Subscription Term, you will have access to the subscribed Services until the end of the then-current Subscription Term. Your cancellation or termination will stop future recurring fees but will not result in any pro-rated refund of fees already paid.
4. Grant of Services.
You are granted non-exclusive, non-transferable rights to install and use the Services for the benefit of the permitted number of users as specified in the documents that accompanied your subscription. You may purchase additional subscriptions for the Services from time to time.
This Agreement shall take precedence over any purchase order or Service Order for additional subscriptions, and any conflicting, inconsistent, or additional terms in such purchase orders shall be null and void.
To the extent that the Services require Kaluari to provide any software, it will be provided subject to any end user license agreement maintained by Kaluari from time to time. In addition, any such software may be a modular operating system. Some of the components may be open source packages, developed independently, and accompanied by separate license terms. In some cases, the open source software license terms and conditions may conflict with the terms of this Agreement and will apply instead of the terms of this Agreement. If an open source software license requires us to distribute any source code related to the software or any modifications to the software, we will make the source code available on request.
Your license rights with respect to individual components of any software accompanied by separate license terms are defined by those terms; nothing in this Agreement shall restrict, limit, or otherwise affect any rights or obligations you may have, or conditions to which you may be subject, under such license terms.
In the event that software is provided in conjunction with the Services, such software must be removed and destroyed at the end of the Subscription Term.
5. Restrictions.
You may not: (i) permit others to use the Services and/or any software, except as expressly provided above for authorized use by the permitted number of users as specified in the documents that accompanied your subscription; (ii) modify or translate the Services and/or any software; (iii) reverse engineer, decompile, or disassemble the Services and/or any software provided in connection therewith, except to the extent this restriction is expressly prohibited by applicable law; (iv) create derivative works based on the Services or any software; (v) merge the Services or any software with another product; (vi) copy the Services or any software, except as expressly provided above; or (vii) remove or obscure any proprietary rights notices or labels on the Services or any software.
6. Ownership
Kaluari and its suppliers and partners own the Services and any related software and all intellectual property rights embodied therein, including copyrights and valuable trade secrets embodied in the Services’ design and coding methodology. The Services and any related software are protected by copyright laws and international treaty provisions. This Agreement provides you only a limited use right, and no ownership of any intellectual property.
7. Privacy Guarantee
Kaluari guarantees client contact information and data is securely stored and no sharing of such information with third parties.
8. Uptime Guarantee
While Kaluari has an uptime guarantee observed for its services, please note that scheduled downtime is not counted as ‘real downtime’ since prior communication will be made to affected users.
9. Support and Updates.
If your Services and any related software qualify for technical support, such support shall be delivered during the Subscription Term.
From time to time, we may automatically update and change the Services (and/or any related software) to improve performance, enhance functionality, reflect changes to the operating system or address security issues. By agreeing to these Terms and to ensure continued access to our new features, you give us permission to automatically install such updates. Alternatively and at our discretion, we may ask you to approve certain major updates.
You acknowledge that certain updates constitute premium updates (such as custom work, software modification, or other additional value added service), in which case and subject to the prior written agreement between you and Kaluari Limited, additional fees and charges may be incurred for such premium updates
If you choose not to install such updates or if you opt out of automatic updates, you may not be able to continue using the Services or any related software.
10. Payments
Kaluari accepts payments via Bank Deposit/Transfer, Credit/Debit Card, PayPal or MPESA.
Services are offered for specified periods of time depending on the subscription and should be renewed before the period elapses.
When your Service is about to expire, we will send you an invoice, via email, for renewal prior to expiry date. We will then send email reminders prior to expiry. We will also send an email expiry notification on the day of Service/domain expiry. We may also follow up with calls and SMS to ensure you got our email notifications regarding your Service status.
If not renewed by expiry date, your Service will then be suspended. Access to the Service can then be provided only if renewal is done in full.
If you do not plan on renewing your Service, we recommend you take a backup of the data in your hosting plan and save it offline before the Service expires and is suspended.
Services not renewed will be terminated permanently after expiry and after the grace period elapses based on this criteria:
o Email hosting, email security, email archiving, backup and disaster recovery: Services will be terminated 30 days after expiry.
o Web hosting and Domain Hosting: Services will be terminated 7 days after expiry.
NOTE: We will not be held responsible for loss of any data hosted in a service not renewed.
11. Automatic Renewal
You agree that your paid subscription will be automatically renewed. You authorize us to charge your card or payment device on file within 30 days of the end of your Subscription Term (or any anniversary thereof), at the renewal term subscription price in effect at the time of renewal. The subscription price for your auto-renewal is subject to change. Your subscription renewal is ongoing and will continue until you cancel, by giving more than 30 days’ notice before the expiry of your Subscription Term (or any anniversary thereof). If you would like to change your auto-renewal settings, please contact our Sales team.
12. Refund Policy
Kaluari does NOT offer refund for any services offered, including but not limited to email hosting (email and collaboration) email security, email archiving, domain registration, domain hosting, domain transfer, website hosting, website created or any of its training services.
Refund is only offered against over-payments, payments made against no service or incorrect transactions.
13. Content and Prohibited Actions>
Client agrees to use the Services for lawful purposes only. Kaluari prohibits the following content on our servers and network. You MUST not publish or transmit via Kaluari Limited’s service any content that Kaluari Limited reasonably believes:
i. Constitutes child pornography.
ii. Constitutes pornography.
iii. Is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech.
iv. Is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes.
v. Is defamatory or violates a person’s privacy.
vi. Creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement.
vii. Improperly exposes trade secrets or other confidential or proprietary information of another person.
viii. Is intended to assist others in defeating technical copyright protections.
ix. Clearly infringes on another person’s trade or service mark, patent, or other property right.
x. Promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking.
xi. Is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Kaluari Limited.
xii. General Dispute; Kaluari hold high standards of integrity; any cases of spoofing, spamming, phishing, copyright infringement will be taken very seriously. Kaluari holds the rights to suspend or terminate such services without notice. An email notification will be sent (before or after) to you. In such cases; the parties involved have the burden of proof. Once Kaluari has verified the above proofs, the service will be reinstated or terminated.
xiii. Kaluari WILL terminate service for any of the above reasons and Kaluari WILL not issue a refund.
xiv. Hacker focused sites
xv. Proxy Scripts
xvi. Anything related to torrents
xvii. Starting background processes on shared servers
xviii. Warez, hacking tools, exploits
Any account found to be in violation of another’s copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting.
Client agrees to only store website content on our shared, reseller, VPS or dedicated servers hosting space. Client agrees NOT to use our shared, reseller, VPS or dedicated servers hosting space for storage of backups. We advise client to store their back up externally.
Client is responsible to keep their accounts Scripts, plugins and modules up to date and secure at all times and strong passwords must be used always.
Client agrees to keep his contact information and email on file up to date at all times. We will use the email on file to send notifications about generated invoices, due invoices, Services suspension, Services termination, new Services provisioned and any other related information.
14. Domain Registration and Transfer policy
Domains registered/transferred to Kaluari must stay with us for at least 1 year before being eligible for a transfer out. If the domain must be transferred out, an additional fee will be charged before EPP/auth code is provided.
15. Anti-spam policy
We have a zero tolerance against spam. Accounts used to send spam will be suspended immediately and the owner will be alerted. If the spam sending is repeated, the account will be removed from our server. We do not allow bulk mailing from our shared servers. Kaluari offers a separate service if you need to send thousands of emails. Please contact us for more information on bulk mailing.
16. Web Hosting Resource Usage
Any account on the server cannot use more than the allocated CPU or memory resources. If you use too much system resources, you will be notified to take the necessary actions. If the usage is too high to keep the server unstable, we will suspend the overloading account so that it doesn’t affect the other clients on the server. For more details, please refer to our Acceptable Use Policy.
17. Transfers
You may not transfer the Services, any related software or any rights under this Agreement without the prior written consent of Kaluari Limited, which consent shall not be unreasonably withheld. A condition to any transfer or assignment shall be that the recipient agrees to the terms of this Agreement. Any attempted transfer or assignment in violation of this provision shall be null and void. We may transfer our rights and obligations under these terms to another organization. We will inform you if this happens and we will endeavor to ensure that the transfer will not adversely affect your rights under the contract.
18. Web Hosting Transfers
Our Support Team will make every effort to help you move your website to us. Transfers are provided as a courtesy service. We do not make any guarantees regarding the availability, possibility, or time required to complete an account transfer. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult, if not impossible, to migrate some or all account data. In some cases, we may not be able to assist you in a transfer of data from an old host. The free transfer service is available for thirty (30) days from your sign-up date.
19. User Content on Websites
User Content includes any content posted by you or by users on any of your websites hosted through the Services (‘User Websites’). You are solely responsible for any and all User Content and any transactions or other activities conducted on or through User Websites. By posting or distributing User Content on or through the Services, you represent and warrant to Kaluari that:
• You have all the necessary rights to post or distribute such User Content, and
• Posting or distribution of such User Content does not infringe or violate the rights of any third party.
Kaluari exercises no control over, and accepts no responsibility for, User Content or the content of any information passing through Kaluari’s computers, network hubs and points of presence or the internet. Kaluari does not monitor User Content. However, you acknowledge and agree that Kaluari may, but is not obligated to, immediately take any corrective action in Kaluari’s sole discretion, including without limitation removal of all or a portion of the User Content or User Websites, and suspend or terminate any and all Services without refund if you violate the terms of this Agreement. You hereby agree that Kaluari shall have no liability due to any corrective action that Kaluari may take.
20. Changes To the Terms
Kaluari Limited reserves the right, at its sole discretion, to make changes to the terms at any time without notification. Client agrees to visit the terms of service regularly for updates.
If you have paid a subscription for use of our Services and any related software, any new contractual terms will apply on the renewal of your subscription. If you do not agree with these new contractual terms, then you should turn-off auto-renewal, delete the Services (and any related software) and cease all use of the Services from the end of the Subscription Term.
21. Dispute Resolution
i. Negotiation
In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof (a "Dispute"), the parties shall attempt to resolve the Dispute through amicable negotiations between the parties' designated representatives.
ii. Mediation
If the Dispute is not resolved through negotiation within thirty (30) days from the date of the initial written request for negotiation, either party may, by written notice to the other party, refer the Dispute to mediation in accordance with the Mediation Rules of the Nairobi Centre for International Arbitration (NCIA). The mediation shall be conducted by a mediator appointed by mutual agreement of the parties, or, failing such agreement within ten (10) days of the notice, by the NCIA.
iii. Arbitration
If the Dispute is not resolved through mediation within sixty (60) days from the date of the mediator's appointment, the Dispute shall be referred to and finally resolved by arbitration under the following terms:
- The arbitration shall be conducted in accordance with the Arbitration Act, 1995 (as amended) of Kenya, or any statutory modification or re-enactment thereof.
- The seat of arbitration shall be Nairobi, Kenya.
- The arbitration shall be conducted by a single arbitrator appointed by mutual agreement of the parties, or, failing such agreement within thirty (30) days of the notice of arbitration, by the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch).
- The language of the arbitration shall be English.
- The decision of the arbitrator shall be final and binding upon the parties, and may be entered and enforced in any court of competent jurisdiction.
iv. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Kenya.
v. Costs
The costs of the mediation and arbitration, including the fees and expenses of the mediator and arbitrator, shall be borne equally by the parties, unless otherwise determined by the mediator or arbitrator.
vi. Confidentiality
All negotiations, mediation, and arbitration proceedings pursuant to this clause shall be confidential, and no information concerning the dispute may be disclosed to any third party except as required by law or as necessary to enforce any resulting settlement or award.
LIMITED WARRANTY STATEMENT; LIMITATION OF LIABILITY
Kaluari Limited warrants only to you that the Services shall perform substantially as described in The Services documentation under normal use. The entire and exclusive liability and remedy for breach of this Limited Warranty shall be, at Kaluari’s option, either (i) return of the list price of the Services, or (ii) replacement of defective Services and/or related software; provided the Services and/or related software are returned to Kaluari with a copy of your purchase confirmation. Kaluari does not warrant or guarantee that any particular computer or other device will be compatible with or function with the Services or any related software, nor do we warrant or accept any liability for the operation of your equipment that is used to access the Services.
KALUARI Limited AND ITS SUPPLIERS AND RESELLERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THE SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED, EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SERVICES OR ANY RELATED SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. This warranty gives you specific rights, and you may have other rights which vary from jurisdiction to jurisdiction.
INDEPENDENT OF THE FORGOING PROVISIONS, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL KALUARI Limited OR ANY OF ITS PARTNERS, SUBSIDIARIES OR PARTNERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, THEFT / LOSS OF PERSONAL DATA, WORK STOPPAGE, COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF KALUARI Limited HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN NO EVENT SHALL KALUARI Limited’S LIABILITY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE MONTHLY SUBSCRIPTION PRICE PAID FOR THE SERVICES.
You acknowledge that in order to protect against loss of data, through a security breach or otherwise, best practice is to run frequent back-ups of your data; to ensure that in the event of a data attack, it may be possible to restore the amended or deleted data. Depending on the Services acquired, we will use commercially reasonable efforts to protect your data; but subject always to your agreement that it is your responsibility to regularly back-up your data.
The Services are only compatible with certain computers and operating systems. The Services are not warranted for non-compatible systems. It is your responsibility to ensure that your system meets our Services and any software requirements and you are responsible for any costs or investments required in order to continue using the Services and any related software. Call Kaluari or your dealer for information about compatibility.
Non-Kaluari Limited Products
The Services and any related software may include or be bundled with other software programs licensed or sold by a licensor other than Kaluari. Kaluari does not warrant non-Kaluari products. Any warranty service for Kaluari products is provided by the product licensor in accordance with the applicable licensor warranty.
Export Regulation
You acknowledge that the Services and any related software may be subject to the import and export laws of any country where Services are imported or re-exported. You agree to comply with all relevant laws and will not to export any Services in contravention to applicable law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required.
FORCE MAJEURE
KALUARI Limited shall not be liable due to failure to performs its obligation under these terms because of matters beyond KALUARI’S reasonable control, including but not limited to exceptional: severe weather, fire, war,pandemic, terrorism, civil disorder, industrial disputes (whether or not involving KALUARI ‘S EMPLOYEES) or acts or instructions of local or central government or other competent authorities or events beyond the reasonable control of KALUARI’S and its suppliers
INDEMNITY
You agree to indemnify KALUARI LIMITED its subsidiaries, affiliates or licensor harmless from any claim or demand including solicitors’ fees made by any third party due to or arising out of your use of this website or any Kaluari services, violation of any of these terms and conditions.
MISCELLANEOUS
This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, representations, and agreements. This Agreement may be modified only by a written agreement signed by the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement is governed by the laws of the Republic of Kenya, East Africa Community. Any action at law relating to this Agreement may only be brought before the courts of competent jurisdiction of Kenya.
