General

The Kondotto Service, including (without limitation) all websites, mobile applications, SMS/email messaging, studios and other interactive properties through which such services are delivered (collectively, the “Service”) are owned, operated and distributed by Ofreddi Pty Ltd, trading as Kondotto, a Company incorporated in Victoria, Australia, with its head office in South Australia (referred to in these Terms of Service as “we” and through similar words such as “us,” “our,” etc.), referred to herein as “Kondotto” or “the Company”. By accessing OR USING any part of the SERVICE, you are agreeing to the terms and conditions described below (the “Terms of Service”) AND THE TERMS AND CONDITIONS OF OUR PRIVACY POLICY (the “Privacy Policy”), WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, YOU SHOULD NOT USE THE SERVICE. These Terms of Service apply to all users, including users who are VIEWING or using Kondotto Applications via the Service and users who are distributors or resellers or who have engaged in the subscription process.

Service description

The Kondotto Engine is a unique, patent pending framework that enables the Company to deliver the Service via the Kondotto Studio. The Kondotto Engine is an Internet of Things (IoT) technology that is protected by international copyright laws, trade secrets legislation and a provisional patent.

The Service enables you, as the User, to use the Kondotto user interface to create “Tracks” which are User Configurations (as hereinafter defined), and User Application Models (as hereinafter defined), which may include a series of Tracks and third-party code or applications on either side of a firewall.

Whether or not such User Configurations and User Applications are transmitted or published, they will be subject to these Terms of Service.

You agree that you will not: (a) reverse engineer or attempt to gain illegal access to the code base or any part of the service or Kondotto Engine;  (b) copy or distribute any part of the Service in any medium without our prior written authorization; or (c) alter or modify any part of the Service in any manner except under the terms of your license as set out below.  NOTE that a separate licensing agreement made directly with Ofreddi Pty Ltd may override these terms – please check your licensing agreement if one is in place.

To access some features of the Service, including the Kondotto Studio, you will have to create or be provided with a login account. When creating or providing information for the creation of your login account, you represent and warrant to us that the information you provide is accurate and complete in all respects. All registrations must be made by you, personally, or your official representative. Accounts registered by robots (“bots”) or other automated methods are not permitted under any circumstances. You may never use another’s login account without permission, and may not permit anyone else to use your login account. Single login accounts shared by multiple persons are not permitted under any circumstances. You may register for plans with multiple login accounts at https://www.kondotto.com/pricing-plans or by contacting us.

You agree that you will be solely responsible for all activity that occurs on your account, whether or not authorized by you, and any outcomes from your use of the account, including any applications that result from your use of the account.

Accordingly, it is extremely important that you keep your password secure. You agree to notify us immediately in the event you become aware of, or suspect, any breach of security or unauthorized use of your account.

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.

As a user of the Service, you must be at least 13 years old. If you are not yet 13 years old, we must receive authorization from a parent, guardian or school, in writing.

We may, at our sole discretion, modify these Terms of Service at any time. By accessing or using the Service at any time after such modifications, you are agreeing to such modifications. These Terms of Service were last modified as of 31 January, 2017. In addition, we may modify and/or temporarily or permanently discontinue all or any part of the Service at any time at our sole discretion, with or without notice, and will not be liable for any such action.

We reserve the right to refuse service to any person for any reason, at our sole discretion. In addition, at our sole discretion, we may suspend or terminate your account for any reason. Such termination of your account will result in your loss of access to the Service. We will not be liable for any decision to suspend, terminate or refuse service under any circumstances.

Fees

We reserve the right, at any time, to change any fees or charges for using any services provided on the Service (or to begin charging fees for any free service), provided that such changes will not apply to fees or charges paid prior to the time of the change. We currently charge subscription and transaction fees for accessing the Kondotto Service, although free accounts are provided to qualified users at our discretion.

Fee schedules for Kondotto are available here: http://www.kondotto.com/pricing-plans. All fees are exclusive of all taxes, levies, duties or similar charges, and you will be responsible for all such charges, excluding only taxes based on our income.

Kondotto subscription fees are refundable for first-time subscribers if the subscription is cancelled within the first thirty days and you have not upgraded your account. You will be informed immediately via the system when your account is eligible for an upgrade.  Note that the 30-day refund policy is not available for users who have previously subscribed and taken advantage of the refund policy.

You must have a valid credit card on file at all times in order to maintain any paying account. Subscription Fees are billed in advance on the monthly billing cycle described below and are non-refundable, except for the 30-day refund policy described above.   Fees for transactions such as bulk SMS and email are charged on a PAYG basis or you may purchase a Recharge Pack to cover your estimated usage per month.

Monthly Subscriptions

If you have a monthly subscription, the following terms apply:

The fees for your first month of service will be charged to your credit card on the day you sign up, and fees for each additional month will be charged on the monthly anniversary of your sign-up date. If the anniversary date does not exist on a given month on the last day of the month (for example, if you sign up on 31 August, your next month of service would be charged on 30 September). We do not provide refunds or credits for partial months of service, downgrades in service that occur in the middle of a monthly billing cycle, or monthly billing cycles in which the service was unused but the account was open, or for any other reason, other than the 30-day refund policy described above.

In order to cancel a paid service, you should email us the cancellation request at accounts@Kondottostudio.com. If you cancel a paid service in the middle of a monthly billing cycle, your cancellation will take effect immediately, and you will not be charged for the next month’s service. However, you will not receive any refund for the fees paid for the monthly billing cycle in which the cancellation occurs, except in connection with the 30-day refund policy described above. You should make a copy of all your content as once your account has been cancelled we need to delete its contents to comply with Privacy regulations.

If you upgrade a paid service in the middle of a monthly billing cycle, your credit card will automatically be charged a pro-rated portion of the new rate for that monthly billing cycle, and the monthly fee will be increased for future monthly billing cycles.

A certain volume of transactions is included with each subscription level. Before you exceed that subscription level, you will receive an alert via the system and/or via email. You may then elect to upgrade to the next subscription level, or purchase a bundle of transactions.

If you downgrade a paid service in the middle of a monthly billing cycle, you will continue to be able to access all the features and credits in your plan for that billing cycle. You will not receive a refund for that billing cycle, but future monthly fees will be decreased accordingly. Downgrading your service level may result in the loss of features. We will not be liable for any such loss.

Annual Subscriptions

If you have an annual subscription, the following terms apply:

The fees for your first year of service will be charged to your credit card on the day you sign up, and fees for each additional year will be charged on the annual anniversary of your sign-up date. We do not provide refunds or credits for partial years of service, downgrades in service that occur in the middle of an annual billing cycle, or all or any portion of an annual billing cycles in which the service was unused but the account was open, or for any other reason, other than the 30-day refund policy described above.

In order to cancel a paid service, you should email us the cancellation request at accounts@Kondotto.com or via the Kondotto interface, depending on your access rights. If you cancel a paid service in the middle of an annual billing cycle, your cancellation will take effect immediately, and you will not be charged for the next year’s service. However, you will not receive any refund for the fees paid for the annual billing cycle in which the cancellation occurs, except in connection with the 30-day refund policy described above. You should make a copy of all your content as once your account has been cancelled we need to delete its contents to comply with Privacy regulations.

A certain volume of transactions is included with your annual subscription level. Before you exceed that subscription level, you will receive an alert via the system and/or via email. You may then elect to upgrade to the next subscription level, or purchase a bundle of transactions (“Recharge”).

If you upgrade a paid service in the middle of an annual billing cycle, your credit card will automatically be charged on a pro rata basis of the new rate for that annual billing cycle, and the annual fee will be increased for future annual billing cycles. If you downgrade a paid service in the middle of an annual billing cycle, you will not receive a refund for that annual billing cycle, but future annual fees will be decreased accordingly. Downgrading your service level may result in the loss of content and features. We will not be liable for any such loss.

Transaction Only “Pay As You Go” Services

You may elect to pay on a “transactions per use” PAYG basis. This means you will pay for messaging or data services in advance on a sliding scale whereby the more you use the less the fee per transaction.  PAYG services are suitable only for certain types of single use scenarios – for example, sending out a single alert on a topic to a bulk messaging list.

Your rights to data

Tracks, or “User Configurations”, are abstract in nature, meaning that different data can be applied to identical configurations to provide different outcomes according to the logic, content or data sources applied by the user. These User Configurations may use your own private data sources or public data sources.  At no time do other users have access to your private data sources unless you choose to provide them with access of your own accord.

The Service also enables you to configure existing User Configurations developed by other users, for your own data sources, where those users have chosen to make their User Configurations available publicly.

You shall be solely responsible for your own User Configurations and User Applications, and the consequences of creating them. You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to your User Configurations and User Applications (and all Content or Data included therein), including the right to authorize us to use the User Configurations and User Applications in the manner contemplated by the Service and these Terms of Service.

You retain all of your ownership rights in the Content and Data Sources of your User Configurations and User Applications.  The Company retains the right to the abstract User Configuration, which forms part of the Kondotto Engine and cannot be separated from the Engine, which is the Company’s sole intellectual property.  However, if you choose to submit the User Applications for PUBLIC use (on a paid or unpaid basis), you hereby grant us an irrevocable, worldwide, non-exclusive, royalty-free, sublicenseable and transferrable license to use the User Configurations  in any formats now or hereafter created and through any channels now or hereafter created. You also hereby grant each user of the Service a non-exclusive license to access your User Configurations that you publicly display through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Configurations as permitted through the functionality of the Service and under these Terms of Service.

We expressly disclaim any and all liability in connection with User Configurations and User Applications. We reserve the right to suspend a User’s account should we believe the User has contravened these Terms of Service, and to terminate or refuse a User’s access to the Service.

We will not tolerate violations of intellectual property rights. If you are a copyright owner and believe that any Data Source or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”). To provide us notice of an infringement, you must provide a written communication to the attention of “DMCA Infringement Notification Dept.” at. PO Box 73, Highgate, SA 5063 or by email to rights@Kondotto.com. that sets forth the information specified by the DMCA (see http://www.copyright.gov/title17/92chap5.html#512). You may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright.

The Service may contain links to third party services such as websites and Application Programming Interfaces (APIs) that are not owned or controlled by us. You acknowledge and agree that we have no control over such sites and resources, are not responsible for the availability of such sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, features, services, information or other materials on or available from such sites or resources, or any websites that they may link to (collectively, “Third Party Services”). We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services.

Intellectual Property Rights

Except for Third Party Applications and Third Party Content, all material included on the Service, including (without limitation) text, software, scripts, configurations, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) are owned by or licensed to us, subject to copyright and other intellectual property rights under Australian and foreign laws and international conventions. In addition, the compilation and presentation of the Content on the Service is subject to copyright owned exclusively by us. Content and Applications on the Service may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without our prior written consent. We reserve all rights not expressly granted in and to the Service and the Content. You agree to not engage in the use, copying, or distribution of any of the Content or Applications other than expressly permitted herein, including any use, copying, or distribution of User Applications of third parties obtained through the Service for any commercial purposes. If you download or print a copy of the Content or Applications for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.

Warranty Disclaimer and Limitation of Liability

YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK, AND THAT ALL CONTENT AND SERVICES ARE PROVIDED TO YOU “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE, AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, AND/OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO, OR IN ANY WAY BE RESPONSIBLE FOR, MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

IN NO EVENT SHALL WE BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING) OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

The Service is controlled and offered by us from our primary facility in Australia, and secondary international facilities. We make no representations that the Service is appropriate or available for use in locations where our facilities do not exist. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

Indemnity

You agree to defend, indemnify and hold harmless us and our affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that one of your User Configurations or User Applications caused damage to a third party; or (v) any action taken by a third party using your account or user ID. This obligation will survive these Terms of Service and your use of the Service.

Code of Conduct for Users

You may not use the Service for any purpose that is unlawful or prohibited by these Terms of Service, or any other purpose not reasonably intended by us. In furtherance, and not in limitation, of the foregoing, you agree not to take any of the following actions in connection with your use of the Service: (i) abuse, harass, threaten, impersonate or intimidate others; (ii) contribute any User Application or Message that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party; (iii) engage in any activity intended to obtain password, account, or private information from any user; (iv) transmit unwanted email or other communications; (v) submit comments or messages linking to affiliate programs, multi-level marketing schemes, or sites/blogs publishing off-topic content; (vi) take any action that might impose an unreasonable or disproportionately large load on our infrastructure; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures we may use to prevent or restrict access to the Service. You will not post on the Service, or transmit to other Users via the Service, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, discriminatory, racially offensive or illegal material.

Miscellaneous

You agree that the Service shall be deemed a passive service based solely in Adelaide, South Australia, and shall not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Adelaide, South Australia. These Terms of Service shall be governed by the internal laws of the State of South Australia, without regard to its conflict of laws principles. Any claim or dispute between you and us that arises in whole or in part from the Service or our services shall be subject to the exclusive jurisdiction of the federal and State courts located in Adelaide, South Australia. These Terms of Service, together with the Privacy Policy and any other legal notices published by us on the Service or in other materials distributed in connection with our services, constitute the entire agreement between you and us concerning the Service and our services. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.

To the fullest extent permitted by applicable law, NO CLAIM UNDER THESE TERMS OF SERVICE SHALL BE JOINED TO ANY OTHER CLAIM, INCLUDING ANY CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE service or the WEB SITE, AND NO CLASS ACTION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you be instituted more than three (3) years after the cause of action arose.

Most communications between us and you will be sent and received electronically. You agree that all agreements, notices, disclosures and other electronic communication exchanged between you and us shall satisfy any legal requirements that such communications be in writing.

To use the Services you must agree to all of the Terms of Service as set out above.

Requests for Information

To request further details, please send an email with “Terms of Service” in the heading to ceo@kondotto.com or write us at:

Ofreddi Pty Ltd Terms
PO Box 73
Highgate
South Australia 5063