These Terms and Conditions (“Terms”) are entered by and between Kinter Inc., a Delaware Corporation with its principal offices located at 35111 Newark Blvd Ste F PMB 5079 Newark, CA 94560 (the “Company”, “we,” "Kinter, or “our”), and you (as defined below), hereinafter referred to as “Customer", “you,” or “your”.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM, STATEMENT OF WORK, OR OTHER DOCUMENT THAT REFERENCES THESE TERMS, BY USING (OR MAKING ANY PAYMENT FOR) THE KINTER PLATFORM AND/OR ANY OTHER KINTER-OFFERED SERVICES, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU: (i) AGREE TO THESE TERMS ON BEHALF OF YOUR ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT; AND (ii) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE KINTER PLATFORM OR ANY OTHER KINTER-OFFERED SERVICES, OR RECEIVE PROFESSIONAL SERVICES FROM KINTER INC.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS OR JURY TRIALS, AND LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE.
These Terms, together with any applicable Order Forms and/or Statements of Work, constitute the "Agreement" between Kinter and Customer.
"Kinter Competitor" means a person or entity in the business of developing, distributing, or commercializing products or services substantially similar to or competitive with Kinter's products or services.
"Authorized Users" means employees of Customer for whom Customer has paid all applicable fees to permit them to access and/or use the Kinter Platform. Kinter hereby grants Customer and its Authorized Users a non-exclusive, non-sublicensable, non-transferable right and license to use and access the Kinter Platform, solely for use by Authorized Users in accordance with the terms and conditions herein. The Kinter Platform is subject to modification from time to time at Kinter's sole discretion, provided the modifications do not materially diminish the functionality of the Kinter Platform provided by Kinter.
"Kinter Platform" means access to and use of Kinter's web-based software platform, which enables businesses to supplement their finance and accounting workforce with artificial intelligence "agents," including any updates or enhancements thereto that Kinter may provide to Customer from time to time, and any associated products or services offered by Kinter in any form.
"Confidential Information" means any oral, written, electronic, graphic, or machine-readable information, including but not limited to information that relates to Kinter's patents, patent applications, research, product plans, products, trade secrets, know-how, security information, SOC 2 reports, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, algorithms, business plans, agreements with third parties, marketing, or finances of Kinter, which is designated to be confidential or proprietary, or, if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Confidential Information shall not include information that is: (i) previously known to Customer without an obligation of confidentiality and demonstrable by Customer; (ii) independently developed by Customer without use of Kinter's Confidential Information; or (iii) rightfully obtained by Customer from third parties without an obligation of confidentiality.
"Documentation" means user manuals, technical manuals, and any other materials provided by or on behalf of Kinter with the Kinter Platform, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Kinter Platform.
"Effective Date" means the date the Customer signed an Order Form or other binding agreement to use the Kinter Platform.
"End User" means an entity that accepts and agrees to these Terms either by clicking a button indicating its acceptance of these Terms and/or by using the Kinter Platform.
"Initial Subscription Term" means the term length specified in Section 2.1 (unless defined in the applicable Order Form) or for however long Customer's account remains in good standing as determined solely by Kinter.
"Order Form" means an ordering document or online order executed by both parties (including signing up to use the Kinter Platform and agreeing to these Terms) specifying the details of access to the Kinter Platform to be provided, including any addenda and supplements thereto.
"Order Term" means the term length specified in the applicable Order Form or for however long Customer's account remains in good standing as determined solely by Kinter.
"Project Ready" means the date Kinter completes any Statement(s) of Work and notifies Customer of said completion (only if Customer has purchased a paid support package). If no date is provided, Kinter shall determine the date.
"Professional Services" means any consulting services provided to Customer pursuant to a SOW, which may include configuration services, providing on-site support, or any other services outside the scope of Support Services.
"Scope Limitations" means any limitations on Customer's use of the Kinter Platform as specified in the applicable Order Form.
"SOW" means a statement of work executed by both parties specifying the details of professional services to be provided.
"Support Services" means basic customer support relating to implementation of the Kinter Platform for the Customer (this does not include any custom work or software engineering services).
WHEREAS, Kinter is engaged in the business of designing and developing an agentic artificial intelligence platform for finance and accounting operations and related products, and has created and developed a cloud-based software platform. Further details on the Kinter Platform can be found on Kinter's website at https://kinter.ai;
WHEREAS, Kinter and Customer believe it is in their mutual interest and desire to enter into an Agreement whereby Customer would use the Kinter Platform for the purposes mentioned above pursuant to the terms and conditions hereinafter provided;
WHEREAS, the parties acknowledge that each Order Form, SOW, and any addenda or amendments are subject to and governed by these Terms;
WHEREAS, the Customer may intend to use the Kinter Platform in its business operations pursuant to this Agreement. Subject to the terms and conditions of this Agreement and Customer's payment of all fees, Kinter grants Customer a limited right during the applicable Order Term to access the Kinter Platform by and through its Authorized Users solely in connection with Customer's internal business operations, any Scope Limitations, and in the manner described by any accompanying Documentation.
NOW, THEREFORE, in consideration of the promises and the mutual covenants of this Agreement, the parties hereto agree as follows:
Kinter hereby grants to Customer, for the term of this Agreement, a non-assignable right and license to use the Kinter Platform to be delivered as a Software as a Service online platform in connection with its business. Customer is prohibited from making any copies, archival or otherwise, of the Kinter Platform.
Each SOW is subject to and governed by this Agreement. If there is a conflict between this Agreement and an SOW, this Agreement will control unless the SOW states that a specific provision of this Agreement will be superseded by a specific provision of the SOW. Kinter will perform any Professional Services in accordance with this Agreement and the applicable SOW.
Kinter retains all right, title, and interest in and to any software programs, tools, specifications, ideas, concepts, inventions, know-how, processes, and techniques that Kinter uses or develops in connection with performing Professional Services, as well as all intellectual property rights therein. Unless otherwise provided in a SOW, and subject to Customer's payment of all applicable fees, Kinter grants Customer a limited, nonexclusive, worldwide, royalty-free, non-transferable license during the applicable SOW term to use such materials, solely in connection with Customer's permitted use of the Kinter Platform.
Customer trademarks or logos shall be known as Marks (collectively, the "Marks"). By agreeing to these Terms, the Customer hereby grants to Kinter an irrevocable, non-exclusive, royalty-free, worldwide right and license to copy, reproduce, use, display, publicly perform, modify, and resize the Marks and use any Customer-provided testimonials, case studies, or quotes on its internal and external-facing marketing assets (including but not limited to its websites, marketing materials, etc.).
Customer represents and warrants that Customer is the sole and exclusive owner of the Marks and testimonials/quote(s), and that Customer has the right to grant the licenses agreed to in this Section. Customer agrees to indemnify, defend, and hold Kinter harmless from and against any first- and third-party claim(s) arising out of or related to Kinter's use of the Marks as permitted by this Agreement. The Customer may not use the name, trade name, trademark, logo, acronym, or other designation of Kinter externally in connection with any press release, advertising, publicity materials, or otherwise without the prior written consent of Kinter.
The access and use rights set forth in this Section do not include any rights to, and Customer will not, with respect to the Kinter Platform (or any portion thereof): (i) employ or authorize a Kinter Competitor to use or view the Kinter Platform or any Confidential Information, or to provide management, hosting, or support for the Kinter Platform; (ii) alter, publicly display, translate, create derivative works of, or otherwise modify the Kinter Platform; (iii) sublicense, distribute, or otherwise transfer the Kinter Platform to any third party; (iv) allow third parties to access or use the Kinter Platform (except for Customer contractors who are bound by confidentiality agreements as expressly permitted herein); (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code (if any) for the Kinter Platform (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to the Kinter Platform or its related systems or networks; (vi) use the Kinter Platform to circumvent the security of another party's network/information, develop malware, or for unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom, or data destruction; (vii) remove or alter any notice of proprietary right appearing on the Kinter Platform; (viii) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of, the Kinter Platform (provided that this does not prevent Customer from comparing the Kinter Platform to other products for Customer's internal use); (ix) use any feature of Kinter's APIs for any purpose other than in the performance of, and in accordance with, this Agreement; or (x) cause, encourage, or assist any third party to do any of the foregoing. Customer agrees to use the Kinter Platform in accordance with laws, rules, and regulations directly applicable to Customer and acknowledges that Customer is solely responsible for determining whether a particular use of the Kinter Platform is compliant with such laws.
This Agreement shall begin on the date of this Agreement and continue for a term equal to the length of the Initial Subscription Term in the Order Form (if not defined, then the term shall be twenty-four months). This Agreement shall be automatically renewed for successive renewal terms equal to the length of the Initial Subscription Term stated in the Order Form (each, an "Extended Term") unless Customer provides Kinter notice in writing of its intention not to renew the Agreement, said notice to be provided at least ninety (90) days prior to the expiration of the then-in-effect Order Term.
Upon renewal, the dollar amounts indicated in the Order Form shall be adjusted for any increases in inflation during the term of this Agreement based on the Consumer Price Index.
Kinter may terminate the Agreement, effective immediately upon written notice, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Kinter may terminate this Agreement and any Order Forms or SOWs immediately effective with or without notice thereof; other termination terms may be stipulated in an Order Form or SOW. Any failure by Customer to timely pay to Kinter any amounts owed under an Order Form or SOW will constitute a material breach of the Agreement and the applicable Order Form or SOW. If Customer fails to timely pay any fees or otherwise breaches or threatens to breach this Agreement, Kinter may, without limitation to any of its other rights or remedies, suspend access to the Kinter Platform until it receives all amounts due, or terminate the Agreement entirely at its sole discretion. Further, failure by Customer to pay any overdue invoice(s) shall entitle Kinter to a payment from Customer in an amount equal to the then-in-effect annual contract value plus interest at the lesser of three percent (3%) per month or the highest rate allowed under applicable law, accruing from the date of breach until paid in full, as a reasonable estimate of liquidated damages to Kinter. This payment is payable in full by Customer within seven days after Kinter notifies Customer of its breach.
Upon termination of this Agreement, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including any license restrictions and terms and conditions relating to intellectual/proprietary rights, sales tax/compensation which Customer may owe, license to Marks, ownership, confidentiality, warranties, notices, disputes, disclaimers, indemnification, limitations of liability, and termination, and the general provisions below.
In consideration for the licenses granted hereunder and during the Initial Subscription Term and for each Extended Term, Customer agrees to pay fee(s) to Kinter in accordance with the fees and schedule(s) outlined in the Order Form and any additional usage costs outlined in the Order Form. All fees and amounts payable under this Agreement are denominated and payable in United States dollars (USD), unless otherwise specified in the applicable Order Form. Any and all fees, including payments of any kind made by Customer to Kinter, are non-refundable. All invoices to Customer shall be due upon receipt. Usage of the Kinter Platform shall be limited to the initial amount of Transactions provided under the applicable platform fee as defined in the Order Form. Any overage incurred shall be billed to Customer as A La Carte Fees.
The Customer shall pay a delinquency charge of the lesser of three percent (3%) per month or the highest rate allowed under applicable law on all overdue amounts until the amounts are paid. If Kinter, in its sole discretion, refers Customer's delinquent account to a debt collection or legal firm after any period (as determined by Kinter due to non-payment, default by Customer, or breach of contract), Kinter may charge an additional thirty-five percent (35%) debt recovery fee or a fee approximately equal to the costs needed to retain a legal or debt collection firm, whichever is higher, on the total debt owed (the "Debt Recovery Fee"). The parties agree that this fee represents a reasonable estimate of Kinter's damages due to collection efforts and is not a penalty. Customer shall be and hereby accepts full liability for the Debt Recovery Fee in addition to any other fees it may owe Kinter.
Anything above and beyond the scope of any SOW entered into between the parties shall be charged at a fixed rate of Four Hundred Dollars per hour ($400.00/hour) or at a rate as mutually defined in an SOW by the parties.
All amounts payable hereunder are exclusive of any sales, use, and other taxes or duties, however designated (collectively, "Taxes"). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Kinter. Customer will not withhold any taxes from any amounts due to Kinter.
Customer hereby authorizes Kinter to automatically charge Customer's credit card and/or financial institution pursuant to the terms of the Order Form. Customer agrees it shall pay a three percent (3%) surcharge (or such lower amount as may be required by applicable law or applicable card network rules) on any fees owed if the Customer wishes to pay any invoice(s) via credit card. Where applicable law or card network rules prohibit credit card surcharges, this provision shall not apply, and Customer's payment obligations shall otherwise remain unchanged.
Usage of the Kinter Platform exceeding the maximum allotted "Transactions" (as described in the Order Form) purchased by Customer will result in Customer being charged overage fees ("A La Carte Fees") at the rate described in the Order Form. Customer shall be obligated to pay any A La Carte Fees the following month.
Kinter reserves the right, in its sole discretion, to modify the pricing of its services and the Kinter Platform, including A La Carte Fees, add new services or pricing plans for additional fees and charges, or amend fees and charges for existing services, at any time without prior notice to Customer. Notwithstanding the foregoing, the fees set forth on an Order Form shall remain fixed for the duration of the Initial Subscription Term set forth therein, and any new pricing, additional fees, and/or charges shall become effective at the start of a new subscription term, unless otherwise agreed to in writing by the parties.
All invoices issued by Kinter shall be deemed correct, binding, and undisputed unless the Customer provides written notice of any dispute within seven (7) calendar days of receipt. Such notice must describe in reasonable detail the nature and basis of the dispute. Failure to provide timely written notice shall constitute the Customer's irrevocable acceptance of the invoice, and the full amount stated shall be due and payable in accordance with the applicable payment terms.
Kinter will retain exclusive interest in and ownership of its intellectual property rights in and to the Kinter Platform and expressly reserves all rights not expressly granted under this Agreement. Customer recognizes that the Kinter Platform is the proprietary and confidential property of Kinter. Accordingly, Customer shall not, without the prior express written consent of Kinter, during the term of this Agreement and in perpetuity thereafter, disclose or reveal to any third party or utilize for its own benefit other than pursuant to this Agreement, any software provided by Kinter, provided that such information was not previously known to Customer or to the general public. Customer further agrees to take all reasonable precautions to preserve the confidentiality of the Kinter Platform and shall assume responsibility that its employees, contractors, affiliates, directors, associates, officers, sub-customers, etc., will similarly preserve this information against third parties. The provisions of this clause shall survive termination of this Agreement. Customer shall take no steps in attempting to reverse engineer the Kinter Platform. All Kinter property and intellectual property, including but not limited to the use of the Kinter Platform, software code, designs, documents, proposals, accounts, etc., shall remain at all times the sole and exclusive property of Kinter.
Kinter may collect various data. Please refer to Kinter's privacy policy (the "Privacy Policy") for information on how Kinter collects, uses, and shares personal information of Authorized Users. Customer acknowledges and agrees that its use of the Kinter Platform is subject to Kinter's Privacy Policy, which may be updated from time to time. The Privacy Policy is accessible at https://kinter.ai/legal/privacy-policy.
Kinter develops, operates, trains, fine-tunes, and improves machine learning models, autonomous AI agents, and other artificial intelligence systems that power the Kinter Platform. Kinter's use of personal information for training and improving such models and systems is governed by the Privacy Policy. Kinter's use of personal data that Kinter Processes on behalf of Customer is governed by the Data Processing Addendum. Customer acknowledges and agrees that Kinter may use de-identified, aggregated, anonymized, statistical, or synthetic data derived from Customer's use of the Kinter Platform for any lawful purpose, including for training and improving Kinter's products, services, and AI systems, without compensation or attribution to Customer.
Customer will not use the Kinter Platform to transmit or provide to Kinter any financial or medical information of any nature, or any sensitive personal data (e.g., social security numbers, driver's license numbers, birth dates, personal bank account numbers, passport or visa numbers, and credit card numbers), except for personal data (including any of the foregoing categories) submitted to or accessed by the Kinter Platform through Integrations expressly enabled by Customer for the purpose of using the Services in accordance with this Agreement and the Documentation. For the avoidance of doubt, Customer shall not use the Kinter Platform to transmit Protected Health Information as defined under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), and the Kinter Platform is not designed for, and Kinter makes no representations regarding, HIPAA compliance. Any HIPAA-regulated processing requires a separate written Business Associate Agreement signed by an authorized officer of Kinter.
Customer's use of third-party products or services that are not licensed to Customer directly by Kinter ("Third Party Apps") shall be governed solely by the terms and conditions applicable to such Third Party Apps, as agreed to between Customer and the third party. Kinter does not endorse or support, is not responsible for, and disclaims all liability with respect to Third Party Apps, including without limitation, the privacy practices, data security processes, or other policies related to Third Party Apps. Customer agrees to waive any claim against Kinter with respect to any Third Party Apps. Customer may enable integrations between the Kinter Platform and Third Party Apps (each, an "Integration"). By enabling an Integration between the Kinter Platform and its Third Party Apps, Customer is instructing Kinter to share the Customer Data necessary to facilitate the Integration. Third party access keys and tokens (including access tokens generated via OAuth flows, API keys supplied to Kinter, and secret keys) are the sole property of Kinter, and Customer hereby and unequivocally transfers ownership to Kinter. Customer is responsible for providing all instructions to the Third Party App provider about the use and protection of Customer Data. The relationship between Kinter and providers of Third Party Apps that Customer separately contracts with (and any sub-processor relationships) is governed by the Data Processing Addendum between Kinter and Customer, where applicable. Customer shall indemnify and hold harmless Kinter from any and all claims arising out of violations of Customer's or its users' improper use of Third Party Integrations. Customer shall provide Kinter with sandbox and API access for any Integrations Customer requests Kinter support during the term.
Customer acknowledges and agrees that the Kinter Platform will require Authorized Users and End Users to share with Kinter certain information, which may include personal information regarding Authorized Users or End Users (such as usernames, passwords, email addresses, and/or phone numbers) for the purposes of providing and improving the Kinter Platform. Prior to authorizing an individual to become an Authorized User or End User, Customer is fully responsible for obtaining the consent of that individual, in accordance with applicable law, to the use of his/her information by Kinter, in accordance with the Privacy Policy. Customer represents and warrants that all such consents have been or will be obtained prior to authorizing any individual to become an Authorized User or End User.
All Confidential Information will be used by Customer for the purpose of providing information and input in the further advancement of this Agreement and shall not be disclosed to any person, except that Customer may disclose the Confidential Information or portions thereof to persons to whom such disclosure is permissible (collectively called "Representatives") who (i) need to know such information and (ii) have agreed to be bound by the terms of this Agreement. Customer further agrees to be responsible for any breach of this Agreement by any of its Representatives. Within 48 hours of Customer becoming aware of the unauthorized use, disclosure, publication, or dissemination of Kinter's Confidential Information while in Customer's control, Customer shall provide Kinter with notice thereof.
Customer may disclose Kinter's Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Customer. In the event of such a requirement or request, Customer shall, to the fullest extent legally permitted: (a) give Kinter prompt written notice of such requirement or request prior to such disclosure; and (b) give Kinter a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Customer making such disclosure.
All Confidential Information, including but not limited to any and all accounts, logins, on-premise software, documents, records, proposals, plans, writings, and other items that Kinter has supplied to Customer containing or relating to the Kinter Platform, its implementation, and/or any Confidential Information disclosed by Kinter to Customer under this Agreement, shall, together with all copies thereof, be promptly and without delay returned to Kinter and destroyed upon termination. Upon Kinter's request, Customer will provide Kinter with written confirmation of destruction in compliance with this provision.
Kinter's notification obligations to Customer regarding security incidents affecting Personal Data are governed exclusively by the Data Processing Addendum. With respect to security events that do not involve Personal Data (including without limitation vulnerabilities not exploited, attempted but unsuccessful unauthorized access, denial-of-service attempts, security testing activities, and operational issues that do not result in unauthorized access to Customer Data), Kinter's only notification obligation is as required by applicable law. Kinter is not obligated to notify Customer of routine internal security events, security audits, vulnerability assessments, or testing activities that do not result in confirmed unauthorized access to Customer Data.
THE WARRANTY PROVIDED FOR HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, THAT MAY ARISE EITHER BY THIS AGREEMENT BETWEEN THE PARTIES OR BY OPERATION OF LAW, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY: IN NO EVENT WILL KINTER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTIONS IT CONTEMPLATES OR RELATES TO (WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR OTHER FORM OF ACTION) AND IRRESPECTIVE OF WHETHER KINTER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE. THE KINTER PLATFORM SHALL BE DELIVERED TO THE CUSTOMER "AS IS" AND NO WARRANTY OF ANY KIND IS MADE BY KINTER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, KINTER MAKES NO REPRESENTATIONS OR WARRANTY, AND CUSTOMER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY OF THE MATERIALS, INFORMATION, SERVICES, OR LICENSES PROVIDED PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL KINTER'S (OR ANY OF ITS AFFILIATES, CONSULTANTS, ASSOCIATES, OR CONTRACTORS' - EXCLUDING THE CUSTOMER) LIABILITY FOR ALL CLAIMS, LIABILITIES, AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR BY WAY OF INDEMNITY OR OTHERWISE, EVER EXCEED FIVE THOUSAND DOLLARS ($5,000) UNDER THIS AGREEMENT OR ANY AGREEMENTS RELATING TO IT. IF AND TO THE EXTENT THAT THE FOREGOING $5,000 LIMITATION IS HELD UNENFORCEABLE OR UNCONSCIONABLE BY A COURT OR ARBITRATOR OF COMPETENT JURISDICTION, KINTER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT AND ALL AGREEMENTS RELATING TO IT SHALL INSTEAD BE LIMITED TO THE TOTAL FEES PAID BY CUSTOMER TO KINTER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, AND IN NO EVENT SHALL ANY LIABILITY EXCEED THIS AMOUNT. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL KINTER (OR ITS DIRECTORS, OFFICERS, CONSULTANTS, CONTRACTORS, EMPLOYEES, PREDECESSORS, SUCCESSORS, OR ASSIGNS) BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES AS A RESULT OF ITS PERFORMANCE OR BREACH OF THIS AGREEMENT, ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, OR COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION.
CUSTOMER EXPRESSLY AGREES THAT USE OF THE KINTER PLATFORM IS AT ITS SOLE RISK. NEITHER KINTER, ITS PRESENT OR FUTURE PARENTS, SUBSIDIARIES, OR RELATED ENTITIES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, THIRD PARTY CONTENT PROVIDERS, OR LICENSORS WARRANT THAT THE KINTER PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE KINTER PLATFORM, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE KINTER PLATFORM.
Customer warrants (if Customer is an entity) that it is duly organized, validly existing, and in good standing in the jurisdiction in which it is registered or resides. Further, Customer warrants that it has all requisite right, power, and authority to enter into this Agreement, perform its obligations, and grant the rights and authorizations in this Agreement.
Customer warrants it is not associated with any person or entity subject to any United States, United Kingdom, European Union, or Japanese economic sanctions, embargoes, or restrictive measures (including any measures contemplated by Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering, and transit of dual-use items) (any such person or entity, a "Denied Person"). Customer agrees not to export or provide items to persons that are ineligible under United States, United Kingdom, European Union, or Japanese law to receive those items, including to any Denied Person. In connection with this Agreement, Customer will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws, such as the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and economic sanctions programs implemented by the U.S. Office of Foreign Assets Control.
Each party represents and warrants to the other that: (a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against the executing party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of the Agreement by the executing party; and (c) the execution, delivery, and performance of the Agreement by the executing party does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
In the event of any claim by Customer under this warranty, Kinter shall have the option to repair the Kinter Platform. In the event that Kinter fails to repair the Kinter Platform within a reasonable period (as defined solely by Kinter, but no less than sixty (60) days per instance) following Customer's written notice (which notice shall include reasonable documentation of the alleged breach), Customer's sole and exclusive recourse shall be to terminate the Agreement upon ninety (90) days' prior written notice to Kinter.
Customer has no right to terminate this Agreement, any Order Form, or any SOW for convenience or without cause prior to the natural expiration of the then-current Order Term or SOW term. Customer acknowledges and agrees that the fees set forth in each Order Form and SOW are calculated based on Customer's commitment to the full Order Term or SOW term, and Kinter has relied on this commitment in pricing the Services.
Notwithstanding any termination of this Agreement, any Order Form, or any SOW for any reason whatsoever (including termination by Customer for material breach by Kinter pursuant to this Section, voluntary termination or attempted termination by Customer, suspension or termination by Kinter for Customer's breach, or any other reason), Customer's payment obligations shall accelerate, and all unpaid fees for the full remaining Order Term and SOW term (the "Early Termination Fee") shall become immediately due and payable upon the effective date of termination, as if no termination had occurred. The parties acknowledge and agree that the Early Termination Fee constitutes a reasonable estimate of Kinter's damages and is not a penalty, given the difficulty of ascertaining actual damages and Kinter's reliance on Customer's term commitment in pricing and capacity planning.
In no event will refunds of any kind be made by Kinter.
Customer represents and warrants that Kinter has given it a reasonable period of time to consider all of the terms of this Agreement and for the purpose of consulting with an attorney should it so choose. Customer represents that it has freely and willingly elected to enter into this Agreement. Customer represents and warrants that it has carefully read each and every provision of this Agreement and that it fully understands all of the terms and conditions of this Agreement. Customer represents and warrants that it enters into this Agreement voluntarily, of its own free will, without any pressure or coercion from any person or entity, including, without limitation, Kinter.
The Kinter Platform employs autonomous artificial intelligence agents that generate output including, without limitation, journal entries, accruals, classifications, reconciliations, supporting documentation, recommendations, and other accounting work product (collectively, "Agent Output"). Customer acknowledges and agrees that:
(a) Agent Output is generated by probabilistic AI systems and may contain errors, inaccuracies, omissions, hallucinations, or output that is not appropriate for Customer's specific accounting policies, internal controls, applicable accounting standards (including U.S. Generally Accepted Accounting Principles, International Financial Reporting Standards, or other frameworks), regulatory requirements, audit requirements, or business circumstances;
(b) Customer is solely responsible for reviewing, validating, modifying, approving, and accepting (or rejecting) all Agent Output before such output is posted to, integrated into, or otherwise made part of Customer's general ledger, financial records, financial statements, regulatory filings, tax filings, or other books of record;
(c) Kinter is not, and shall not be deemed to be, Customer's accountant, auditor, tax advisor, financial advisor, or fiduciary, and the Kinter Platform does not constitute or provide accounting, audit, tax, legal, or financial advice. Customer's controllers, accountants, auditors, tax preparers, and other professional advisors retain professional responsibility for the appropriateness, accuracy, and completeness of Customer's financial work product;
(d) Kinter makes no representation or warranty that Agent Output is accurate, complete, GAAP-compliant, IFRS-compliant, audit-ready, regulatory-compliant, or fit for any particular purpose, and all such warranties are expressly disclaimed;
(e) Customer's election to enable any auto-posting, auto-approval, fully autonomous, scheduled, or similar feature in the Kinter Platform constitutes Customer's instruction to Kinter to take such automated actions on Customer's behalf, and Customer assumes all risk and responsibility for output generated and actions taken pursuant to such configuration; and
(f) KINTER SHALL HAVE NO LIABILITY FOR ANY ERRORS, RESTATEMENTS, REGULATORY PENALTIES, AUDIT FINDINGS, FINANCIAL MISSTATEMENTS, LOST TAX BENEFITS, OR OTHER DAMAGES OF ANY KIND ARISING FROM CUSTOMER'S RELIANCE ON, USE OF, POSTING OF, OR ACTION BASED ON AGENT OUTPUT, REGARDLESS OF WHETHER CUSTOMER REVIEWED, APPROVED, OR OTHERWISE VALIDATED SUCH OUTPUT PRIOR TO USE.
From time to time, Kinter may make available agents, integrations, features, or other functionality designated as "beta," "preview," "early access," "experimental," or similar (collectively, "Beta Features"). Beta Features are provided for evaluation purposes only, are not part of the Kinter Platform for purposes of warranty obligations, service level commitments, indemnification obligations, or any other obligations of Kinter under this Agreement, and are provided "AS IS" without warranty of any kind. Kinter may modify, discontinue, or remove Beta Features at any time without notice and without liability. Customer's use of Beta Features is voluntary and at Customer's sole risk.
Kinter shall reasonably configure and set up the Kinter Platform in accordance with any timelines provided on the Order Form or, if none are specified, within a timeframe determined by Kinter in its sole discretion. As part of the initial setup, Kinter will provide basic onboarding and training to up to one (1) designated Customer employee or representative, which may include guidance on platform use, configuration, and standard workflows. For a period of thirty (30) days following the initial go-live date, Kinter will provide limited, non-technical email support to address general questions related to the use of the Kinter Platform. Such support does not include custom development, integrations, advanced configuration, or ongoing consulting services. Any additional support beyond this period or scope requires the purchase of a separate support plan. Any custom work shall be billed at the hourly rates detailed within this Agreement. Customer is responsible for ensuring that its designated personnel participate in the setup and training process and for implementing any recommended configurations on its end, if applicable. Customer shall notify Kinter in writing of any material issues or deficiencies with the Kinter Platform within seven (7) days following go-live. If Customer fails to provide such notice within this period, the Kinter Platform shall be deemed accepted. Prior to acceptance, Kinter shall have the right, at its sole discretion, to address and remedy any reported issues. Following acceptance, Kinter shall have no further obligation to make corrections except as expressly set forth in the Warranties provision of this Agreement.
To preserve project and implementation timelines, Customer shall promptly respond to all Kinter inquiries within three (3) business days via email. If such notice is not received, the Kinter request shall automatically be deemed accepted. Notwithstanding the foregoing, if Customer is disengaged or unresponsive for fourteen business days, Kinter shall consider any implementation complete and will collect any remaining balances.
Customer agrees to comply with all onboarding guides, implementation instructions, and related documentation provided by Kinter (the "Onboarding Materials") in connection with the setup and use of the Services. Kinter may update the Onboarding Materials from time to time, and Customer agrees to adhere to any reasonable changes communicated in writing.
To the fullest extent permitted by law, Customer (as an indemnifying party) shall indemnify, defend, and hold harmless Kinter (as an indemnified party) against any and all losses, claims, allegations, demands, suits, proceedings, investigations, prosecutions, actions, threats, causes of action, liabilities, obligations, costs, expenses, assessments, settlements, judgments, interest, penalties (including legal expenses and reasonable attorneys' fees), court costs, and all other litigation expenses, damages, or injuries of any kind or nature whatsoever (whether civil, criminal, administrative, or investigative, and whether formal or informal, and including appeals and including any breaches of this Agreement by Customer) in connection with: (i) any proceeding arising out of or in any way connected with this Agreement; (ii) any infringement of patent rights, copyright, trade secret, or any other proprietary right or trademark, and all other intellectual property claims of any person, entity, or persons in consequence of any of Customer's officers or agents, or articles or services to be supplied in the performance of this Agreement.
In addition to the foregoing, the Customer hereby and irrevocably forever explicitly waives any claims against Kinter and agrees to indemnify, defend, and hold harmless Kinter related to Customer's unauthorized customization, modification, or other alterations to the Kinter Platform, violations of this Agreement and/or any other agreements between Kinter and Customer, Kinter's performance or non-performance of the duties outlined in this Agreement, any third-party APIs/services and their associated terms and conditions and privacy policies (including any possible violations by Customer of said terms and conditions), privacy requirements, infringement of any patent, copyright, trademark, or trade secret, intellectual property, the handling of any intellectual property and confidential information by Kinter and its affiliate(s), and/or misuse or non-compliance of third-party APIs/services, including claims that its customization, modification, or other alterations infringe a third party's intellectual property rights.
The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants, and experts, and related costs, and Kinter's costs of investigating any claims. In addition to Customer's obligation to indemnify Kinter, Customer specifically acknowledges and agrees that it has an immediate and independent obligation to defend Kinter from any claim that actually or potentially falls within this indemnification provision, even if the allegations are or may be groundless, false, or fraudulent, which obligation arises at the time such claim is raised to Kinter and continues at all times thereafter.
Customer will be fully responsible for Authorized Users' compliance with this Agreement, and any breach of this Agreement by an Authorized User shall be deemed to be a breach by Customer. Kinter's relationship is with Customer and not individual Authorized Users or third parties using the Kinter Platform through Customer, and Customer will address all claims raised by its Authorized Users directly and shall not hold Kinter liable.
Subject to the limitations and conditions set forth in this Section, Kinter will defend Customer against any third-party claim alleging that Customer's authorized use of the Kinter Platform within the scope of this Agreement directly infringes a U.S. patent issued as of the Effective Date, registered U.S. copyright, or registered U.S. trademark of such third party (an "IP Claim"), and Kinter will indemnify Customer for amounts finally awarded against Customer by a court of competent jurisdiction, or paid in settlement of such IP Claim approved in writing by Kinter.
Kinter's obligations under this Section 7.5 do not apply to, and Kinter shall have no liability for, any IP Claim arising out of or relating to: (a) Customer's use of the Kinter Platform in combination with any software, hardware, data, content, or service not provided by Kinter, where such infringement would not have occurred but for the combination; (b) modifications, alterations, or derivative works made to the Kinter Platform by anyone other than Kinter; (c) Customer's use of the Kinter Platform other than in accordance with this Agreement and the Documentation; (d) Customer Data, Customer's instructions, prompts, or input to the Kinter Platform, or output generated based on such Customer-provided input; (e) Customer's continued use of an allegedly infringing component after Kinter has provided a non-infringing alternative or modification; (f) any Beta Features; (g) Third Party Apps or Integrations; or (h) any open-source software incorporated into the Kinter Platform under the terms of its open-source license.
If Kinter receives notice of an IP Claim, or believes the Kinter Platform may infringe, Kinter may, at its option and expense and without liability beyond this Section: (i) modify or replace the affected portion of the Kinter Platform to be non-infringing, (ii) procure for Customer the right to continue using the affected portion of the Kinter Platform, or (iii) terminate this Agreement (or the affected portion thereof) and refund any prepaid, unused fees attributable to the terminated portion.
THIS SECTION 7.5 STATES KINTER'S SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS RELATING TO THE KINTER PLATFORM. KINTER'S AGGREGATE LIABILITY UNDER THIS SECTION 7.5 IS SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 5.2 AND COUNTS AGAINST THE AGGREGATE LIABILITY CAP THEREIN.
The party seeking indemnification under this Section 7 (the "Indemnified Party") shall: (a) promptly notify the indemnifying party (the "Indemnifying Party") in writing of any claim for which indemnification is sought (provided that any failure to provide such prompt notice shall relieve the Indemnifying Party of its obligations only to the extent it is materially prejudiced thereby); (b) grant the Indemnifying Party sole control over the defense, negotiation, and settlement of such claim, including the selection of counsel; and (c) provide reasonable cooperation in the defense, at the Indemnifying Party's expense. The Indemnified Party may participate in the defense at its own expense with counsel of its own choosing, but the Indemnifying Party shall control the defense. The Indemnifying Party shall not, without the Indemnified Party's prior written consent (such consent not to be unreasonably withheld), settle any claim that (i) imposes any non-monetary obligation on the Indemnified Party, (ii) requires any admission of fault or liability by the Indemnified Party, or (iii) is not subject to an unconditional release of the Indemnified Party. The Indemnified Party shall not settle, compromise, or admit liability with respect to any claim subject to indemnification without the Indemnifying Party's prior written consent.
Any notice required to be given to Kinter pursuant to this Agreement shall be in writing and delivered to its address first mentioned above, with a copy to legal@kinter.ai. Customer consents to delivery of notices: (i) personally delivered, (ii) by a recognized international or overnight courier, (iii) by certified mail, or (iv) via email. Notices to Kinter are effective upon receipt at both the physical address and legal@kinter.ai. Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
Any and all disputes, controversies, or claims arising under or in connection with this Agreement shall be settled exclusively by confidential arbitration, conducted before a single arbitrator selected mutually by the parties in New York State or in another location as may be reasonably determined by Kinter at its sole written discretion, in accordance with the rules of the American Arbitration Association then in effect (subject to Section 8.4). The arbitration shall be final and binding on the parties. Each party will, upon written request of the other party, promptly provide the other with copies of relevant documents. There shall be no other discovery allowed. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
The parties hereto will use their reasonable best efforts to resolve any dispute hereunder through good-faith negotiations. A party hereto must submit a written notice to any other party to whom such dispute pertains, and any such dispute that cannot be resolved within sixty (60) calendar days of receipt of such notice (or such other period to which the parties may agree) will be submitted to an arbitrator selected by the parties. Notwithstanding the foregoing, Kinter shall have the right to commence arbitration proceedings against Customer within fourteen (14) days after any notice of a dispute is made by Kinter. Customer agrees that, to the fullest extent permitted by law, Customer may only bring a claim against Kinter in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding relating to, arising out of, or in any way whatsoever connected with this Agreement. Customer agrees that, by entering into this Agreement, Customer is waiving the right to participate in a class action and to a trial by jury to the fullest extent permitted by applicable law.
To the fullest extent permitted by applicable law, Kinter and Customer agree to arbitrate all disputes and claims between the parties (also referred to as "us"). This arbitration clause is intended to be broadly interpreted and shall govern all disputes. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation, or any other statutory or common-law legal theory; (ii) claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); (iii) claims for mental or emotional distress or injury not arising out of physical bodily injury; (iv) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (v) claims that may arise after the termination of this Agreement.
You agree that, by entering into this Agreement, you and Kinter are each waiving the right to participate in a class action and to a trial by jury to the fullest extent permitted by applicable law. This Agreement evidences a transaction in interstate commerce, and the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this Arbitration Agreement, including the validity and enforceability of the parties' agreement to arbitrate. To the extent state law applies to questions concerning the formation, contractual validity, or contractual enforceability of this Arbitration Agreement (as distinct from the FAA's framework for arbitration enforcement), such questions shall be governed by the laws of the State of Delaware, without regard to conflicts of laws principles. This Arbitration Agreement shall survive termination of this Agreement.
Kinter is committed to participating in a consumer-friendly dispute resolution process. To that end, this Agreement provides for the following: (i) where the relief sought is $25,000 or less, the arbitration will be conducted by FairClaims in accordance with its Arbitration Rules & Procedures effective at the time a claim is made. You consent to receive electronic service of process. Where you are delinquent in responding to such process, you will be responsible for any attorney, court, or other fees associated with the delinquency. The party filing the dispute will be responsible for payment of any costs associated with that filing, including costs borne by Kinter. Notwithstanding anything to the contrary, any FairClaims arbitration hearing shall be held via videoconference; or (ii) where the relief sought is $25,001 or more, the arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement.
You and Kinter agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective, and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration must first send to the other a written Notice of Dispute ("Notice").
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this subsection. All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Kinter have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability of the Arbitration Agreement or whether a dispute can or must be brought in arbitration (including whether a dispute is subject to this Arbitration Agreement or a previous arbitration provision between you and Kinter), which are for a court of competent jurisdiction to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.
Unless Kinter and you agree otherwise, or the applicable rules dictate otherwise, any AAA arbitration hearings (i.e., for claims of $25,001 or more under Section 8.4.2(ii)) will take place in the county outlined in Section 8.2, and you and a Kinter representative will be required to attend in person. FairClaims arbitration hearings (i.e., for claims of $25,000 or less under Section 8.4.2(i)) will be conducted via videoconference as provided in Section 8.4.2. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's decision is binding only between you and Kinter and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator's award that has been fully satisfied shall not be entered in any court.
As in court, you and Kinter agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose.
The arbitrator is authorized to impose any sanctions under the AAA Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel; however, the arbitrator may not award punitive damages.
The arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award, and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law. You and Kinter agree that any arbitration proceedings initiated hereunder shall be kept in strict confidence, meaning that you and Kinter agree not to disclose or cause to be disclosed to any third party the dispute(s) to be arbitrated hereunder, the existence of the dispute(s), or any of the underlying facts, circumstances, documents, and other materials relating to such dispute(s), except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law. Any dispute, claim, or controversy arising under or in connection with this Agreement may never be disclosed publicly to the fullest extent permitted by law. Neither party shall take any action that will harm the reputation of the other or which would reasonably be expected to lead to unwanted or unfavorable publicity to either of the parties or entities.
In any arbitration between you and Kinter, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party's favor and is less than the defending party's settlement offer, or if the award is in the defending party's favor, the other party must pay the defending party's costs incurred after the offer was made, including any attorney's fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing. Any settlement offer made by either party shall not be disclosed to the arbitrator.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND KINTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR KINTER'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and Kinter agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief, class, representative, and private attorney general claims, and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and Kinter will be subject to this Section and not to any prior arbitration agreement you had with Kinter, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Section amends any prior arbitration agreement you had with Kinter, including with respect to claims that arose before this or any prior arbitration agreement.
The parties expressly agree that this Arbitration Agreement does not authorize, and shall not be construed to authorize, any form of class arbitration, mass arbitration, collective arbitration, representative arbitration, or arbitration on behalf of any putative class, group, or other persons. The arbitrator shall not have the authority to: (a) consolidate the claims of two or more parties without all such parties' express written agreement and Kinter's express written agreement; (b) preside over any form of class, collective, representative, mass, private attorney general, or aggregated proceeding; (c) award declaratory or injunctive relief that affects, applies to, or benefits any person other than the individual parties to the arbitration; or (d) certify or allow proceeding as a class.
This Section 8.4.8 supplements and shall be construed independently from the class action waiver in Section 8.4.7. The class action waiver in Section 8.4.7 governs litigation in courts; this Section 8.4.8 governs proceedings in arbitration. Each provision is intended to operate independently of the other, and the unenforceability of one shall not affect the enforceability of the other. If any provision of this Section 8.4.8 is held to be unenforceable as applied to a particular request for relief, the affected request shall be decided by a court of competent jurisdiction, and all other arbitrable claims and requests for relief shall remain in arbitration on an individual basis.
If any portion of this arbitration agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this arbitration clause shall continue to be enforceable and valid according to the terms contained herein.
SUBJECT TO THIS SECTION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE OR YOUR USE OF THE SERVICE AND/OR SITE, THESE TERMS, OR THE RELATIONSHIP BETWEEN US, MUST BE COMMENCED WITHIN SIX MONTHS OF THE RELEVANT EVENTS. A DISPUTE IS COMMENCED IF IT IS FILED IN AN ARBITRATION OR, IF THE DISPUTE IS NON-ARBITRABLE, A COURT WITH JURISDICTION, DURING THE SIX-MONTH PERIOD. IF WE PROVIDE NOTICE OF A DISPUTE UNDER SECTION 8, THE SIX-MONTH PERIOD IS TOLLED FOR 60 DAYS FOLLOWING RECEIPT OF THE NOTICE OF DISPUTE. YOU HEREBY WAIVE—THAT IS, GIVE UP—THE RIGHT TO PURSUE ANY DISPUTE, CLAIM, OR CONTROVERSY THAT IS NOT FILED WITHIN SIX MONTHS, AND ANY RIGHT YOU MAY HAVE HAD TO PURSUE THAT DISPUTE, CLAIM, OR CONTROVERSY IN ANY FORUM IS PERMANENTLY BARRED. IF ANY CLAIM IS FILED AGAINST KINTER BY CUSTOMER MORE THAN SIX MONTHS SUBSEQUENT TO THE DATE CUSTOMER LAST LOGGED INTO THE KINTER PLATFORM OR THE TERMINATION OF THIS AGREEMENT AS DETERMINED BY KINTER (THE "STATUTE DATE"), IT SHALL BE PRECLUDED BY THIS PROVISION, REGARDLESS OF WHETHER OR NOT THE CLAIM HAS ACCRUED AT THAT TIME.
IN THE EVENT THAT ANY POSSIBLE DISPUTES OR POSSIBLE CLAIMS ARE NOT FILED PRIOR TO THE PASSING OF THE STATUTE OF LIMITATIONS (AS DESCRIBED ABOVE), THEN IMMEDIATELY AFTER THE STATUTE OF LIMITATIONS HAS PASSED, THE CUSTOMER, ON BEHALF OF ITSELF AND ITS SUCCESSORS, ASSIGNS, AND OTHER LEGAL REPRESENTATIVES, AGREES THAT AFTER SUCH PASSING, IT SHALL HEREBY ABSOLUTELY, UNCONDITIONALLY, AND IRREVOCABLY RELEASE, REMISE, AND FOREVER DISCHARGE KINTER, AND ITS SUCCESSORS AND ASSIGNS, AND ITS PRESENT AND FORMER SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, DIVISIONS, PREDECESSORS, DIRECTORS, OFFICERS, ATTORNEYS, EMPLOYEES, CONSULTANTS, AGENTS, AND OTHER REPRESENTATIVES (BEING HEREINAFTER REFERRED TO COLLECTIVELY AS THE "RELEASEES" AND INDIVIDUALLY AS A "RELEASEE"), OF AND FROM ALL DEMANDS, ACTIONS, CAUSES OF ACTION, SUITS, COVENANTS, CONTRACTS, CONTROVERSIES, AGREEMENTS, PROMISES, SUMS OF MONEY, ACCOUNTS, BILLS, RECKONINGS, DAMAGES, AND ANY AND ALL OTHER CLAIMS, COUNTERCLAIMS, DEFENSES, RIGHTS OF SET-OFF, DEMANDS, AND LIABILITIES WHATSOEVER (INDIVIDUALLY, A "CLAIM" AND COLLECTIVELY, "CLAIMS") OF EVERY NAME AND NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, BOTH AT LAW AND IN EQUITY, WHICH CUSTOMER OR ANY OF ITS SUCCESSORS, ASSIGNS, OR OTHER LEGAL REPRESENTATIVES MAY NOW OR HEREAFTER OWN, HOLD, HAVE, OR CLAIM TO HAVE AGAINST THE RELEASEES OR ANY OF THEM FOR, UPON, OR BY REASON OF ANY CIRCUMSTANCE, ACTION, CAUSE, OR THING WHATSOEVER WHICH ARISES AT ANY TIME ON OR PRIOR TO THE DAY AND DATE OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, FOR OR ON ACCOUNT OF, ARISING OUT OF, OR IN RELATION TO, OR IN ANY WAY IN CONNECTION WITH ANY OF THE AGREEMENT TO THE FULLEST EXTENT ALLOWED BY LAW, OR ANY OF THE OTHER TRANSACTIONS OR AGREEMENTS THAT MAY RELATE IN ANY WAY.
This Agreement shall be governed by the laws of Delaware without regard to conflicts of laws principles, except the arbitration clause and any arbitration hereunder shall be governed by the United States Federal Arbitration Act. The Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. Notwithstanding the foregoing, including the arbitration clauses of this Agreement, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to recoup any payments due; all other claims must be arbitrated.
The parties are and shall remain independent contractors. Nothing in this Agreement, and no course of dealing or performance, shall be construed to create or imply any association, partnership, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party shall have, nor shall represent that it has, any authority to act on behalf of, bind, or incur obligations for the other party, except as expressly set forth in this Agreement. Each party shall be solely responsible for its own employees, agents, contractors, and service providers, including the direction and compensation thereof and compliance with all applicable laws, including employment, tax, and benefits laws. This Agreement is not intended to confer, and does not confer, any rights or remedies upon any third party.
This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
The license granted hereunder is personal to Customer and may not be assigned by any act of Customer without the consent of Kinter. Customer may not assign or otherwise transfer this Agreement, in whole or in part, without Kinter's prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
The Customer acknowledges that any breach or threatened breach of its obligations under this Agreement will cause irreparable harm to Kinter; therefore, Kinter shall have, in addition to any remedies available at law, the right to obtain equitable relief to enforce this Agreement fully. In the event of a breach or threatened breach by the Customer of any of the provisions of this Agreement, the Customer agrees that Kinter is entitled to a permanent injunction, in addition to and not in limitation of any other rights and remedies available to Kinter at law or in equity, in order to prevent or restrain any such breach by the Customer or by the Customer's partners, agents, representatives, servants, employees, and/or any and all persons directly or indirectly acting for or with the Customer. Accordingly, in the event of such breach or threatened breach, Kinter will be entitled, if it so elects, to institute and prosecute proceedings to obtain damages for any breach of these Terms and/or to enforce the specific performance of these Terms by the Customer and/or to enjoin the Customer from breaching or attempting to breach these Terms. In the event Kinter believes that the Customer has breached the Customer's obligations under these Terms, or threatens to do so, it shall provide the Customer notice of such belief setting forth the basis for its belief.
Customer will comply with the export laws and regulations of the United States, European Union, and other applicable jurisdictions in providing and using the Kinter Platform. Customer may not export, re-export, or otherwise access the Kinter Platform in violation of applicable law, including access or use in any embargoed country or other jurisdiction where such access or use is prohibited. Each party represents that it is not named on any U.S. government denied-party list.
Kinter may amend this Agreement at any time by posting the amended terms on this site. It is the Customer's responsibility to review these terms periodically. The Customer's continued use of the Kinter Platform following the posting of revised terms means that Customer accepts and agrees to the changes. Customer is expected to check this page frequently so it is aware of any changes, as they are binding on Customer. By continuing to access or use the Kinter Platform after any revisions become effective, Customer agrees to be bound by the revised terms. If the Customer does not agree to the new terms, the Customer is no longer authorized to use the Kinter Platform.
Kinter reserves the right to withdraw or amend the Kinter Platform, and any service or material it provides via the Kinter Platform, in its sole discretion without notice. Kinter will not be liable if for any reason all or any part of the Kinter Platform is unavailable at any time or for any period unless the Customer is explicitly covered by an applicable Service Level Agreement offered by Kinter. From time to time, Kinter may restrict access to some parts of the Kinter Platform, or the entire Kinter Platform, to users, including Authorized Users.
The Kinter Platform may contain links to third-party websites or services that are not owned or controlled by Kinter and/or its affiliates.
Kinter has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. Kinter does not warrant the offerings of any of these entities/individuals or their websites.
CUSTOMER ACKNOWLEDGES AND AGREES THAT KINTER 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 SUCH CONTENT, GOODS, OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD-PARTY WEBSITES OR SERVICES.
KINTER STRONGLY ADVISES CUSTOMER TO READ THE TERMS OF SERVICE AND PRIVACY POLICIES OF ANY THIRD-PARTY WEBSITES OR SERVICES THAT IT VISITS.
Customer may provide Kinter, either directly at security@kinter.ai or via third-party sites and tools, with information, suggestions, comments, ideas, improvements, error reports, or other feedback or materials concerning errors, problems, complaints, and other matters related to the Service (collectively, "Feedback"). Customer acknowledges and agrees that: (i) Customer shall not retain, acquire, or assert any intellectual property right or other right, title, or interest in or to the Feedback; (ii) Kinter may have development ideas similar to the Feedback; (iii) Feedback does not contain confidential or proprietary information from Customer or any third party; and (iv) Kinter is not under any obligation of confidentiality with respect to the Feedback. Kinter and its affiliates will be free to use, disclose, reproduce, modify, license, transfer, sublicense, distribute, exploit, and otherwise commercialize the Feedback in any manner and for any purpose, without compensation or attribution to Customer. To the extent the foregoing transfer of ownership is not effective under applicable mandatory laws, Customer hereby grants Kinter and its affiliates an exclusive, transferable, irrevocable, free-of-charge, sub-licensable, unlimited, and perpetual right and license to use (including to copy, modify, create derivative works, publish, distribute, and commercialize) the Feedback in any manner and for any purpose.
Kinter uses, from time to time, third-party sites, tools, and service providers in providing the Services. The list below is illustrative and non-exhaustive; Kinter may add, remove, or substitute providers at any time without notice. The current list of sub-processors handling personal data is maintained at https://kinter.ai/legal/subprocessors.
11.10.1 Mem0. Mem0 is a universal memory layer for artificial intelligence applications provided by Embedchain, Inc. Privacy Policy: https://mem0.ai/privacy-policy.
11.10.2 Sentry. Sentry is an error tracking and observability solution provided by Functional Software, Inc. More information: https://sentry.io/privacy/.
11.10.3 Datadog. Datadog is an application performance monitoring and logging service provided by Datadog, Inc. Privacy Policy: https://www.datadoghq.com/legal/privacy/.
11.10.4 Google Analytics. Google Analytics is a web analytics service offered by Google that tracks and reports website traffic. Google uses the data collected to track and monitor the use of the Service. This data is shared with other Google services. Google may use the collected data to contextualize and personalize the ads of its own advertising network. Google Privacy Terms: https://policies.google.com/privacy?hl=en. Google's policy for safeguarding analytics data: https://support.google.com/analytics/answer/6004245.
11.10.5 Mixpanel. Mixpanel is provided by Mixpanel Inc. Customer can prevent Mixpanel from using your information for analytics purposes by opting out: https://mixpanel.com/optout/. Mixpanel terms: https://mixpanel.com/terms/.
11.10.6 Facebook. Facebook, Facebook Ads, Facebook Pixel, and related products are provided by Meta Platforms Inc. Privacy Policy: https://www.facebook.com/about/privacy/previous.
11.10.7 Amazon Web Services. Amazon Web Services and its associated systems are operated by Amazon.com Services LLC. By using the Kinter Platform, you agree to abide by all requirements of AWS and Amazon APIs and not to abuse them or violate their terms and conditions. Amazon terms and API license: https://developer-docs.amazon.com/sp-api/docs/policies-and-agreements.
11.10.8 OpenAI. OpenAI and its associated systems are operated by OpenAI OpCo, LLC. Privacy Policy: https://openai.com/policies/privacy-policy/.
11.10.9 Anthropic. Anthropic and its associated systems are operated by Anthropic PBC. Privacy Policy: https://www.anthropic.com/legal/privacy.
11.10.10 Google Gemini. Google Gemini is a generative artificial intelligence chatbot and virtual assistant service offered by Google. Privacy Policy: https://policies.google.com/privacy.
11.10.11 Descope. Descope and its associated systems are operated by Descope Inc. Descope provides customer identity and access management services. Privacy Policy: https://www.descope.com/privacy.
11.10.12 Finch. Finch is an HRIS and payroll connectivity service provided by Tryfinch, Inc. Privacy Policy: https://tryfinch.com/privacy.
11.10.13 Plaid. Plaid is a banking connectivity service provided by Plaid Inc. Privacy Policy: https://plaid.com/legal/.
11.10.14 Stripe. Stripe provides subscription billing and payment processing services and is operated by Stripe, Inc. Privacy Policy: https://stripe.com/privacy.
Kinter uses various other APIs and integrations in its platform, of which a list of commonly supported apps is available at: https://kinter.ai/product/integrations. By using the Kinter Platform, all users of Customer agree to abide by the terms and conditions set forth herein and abide by all relevant Third Party App terms of service and policies.
Both parties will comply with all applicable laws and regulations relating to data protection, and each party will cooperate with the other party for compliance with the applicable regulations. In particular, each party undertakes to comply with their obligations under the General Data Protection Regulation; applicable U.S. privacy laws such as the California Consumer Privacy Act (CCPA); the Act on the Protection of Personal Information of Japan; and any other applicable local regulations, codes of practice, and best-practice guidance issued by any applicable authorities (together, the "Data Protection Requirements").
To the fullest extent permitted under applicable law, Customer agrees that it shall not, and shall cause its officers, directors, employees, contractors, affiliates, and agents not to, directly or indirectly: (i) disparage, defame, criticize, ridicule, or make any negative, derogatory, or untrue statements (whether oral, written, electronic, in print, on social media, or otherwise) about Kinter or any of its past and present parent companies, subsidiaries, related companies and affiliates, owners, members, managers, officers, directors, employees, agents, successors, and assigns, or about any of Kinter's products, services, technology, personnel, or business practices; (ii) take any action that would reasonably be expected to harm, or that has the effect of harming, the reputation, goodwill, or business interests of Kinter or any of the foregoing parties; or (iii) encourage, assist, or induce any third party to engage in any of the foregoing. This obligation applies during the term of the Agreement and shall survive termination of the Agreement indefinitely. Nothing in this Section shall prohibit Customer from providing truthful testimony or information in response to a lawful subpoena, court order, or government investigation, or from making good-faith reports to regulatory authorities.
Customer will ensure that any subcontractors with access to any Kinter product(s) or other Kinter technology licensed under this Agreement, including integration consultants, comply with Customer's obligations under this Agreement and that the terms of any agreement between Customer and a subcontractor are consistent with this Agreement.
The Kinter Data Processing Addendum (the "DPA"), available at https://kinter.ai/legal/dpa, is incorporated into this Agreement by reference and applies to the extent Kinter Processes Personal Data on behalf of Customer in connection with the Services. The Kinter Service Level Agreement (the "SLA"), available at https://kinter.ai/legal/sla, is incorporated into this Agreement by reference and applies to Customers entitled to service level commitments under the terms of the SLA and the applicable Order Form. In the event of any conflict between this Agreement and the DPA with respect to the Processing of Personal Data, the DPA controls. In the event of any conflict between this Agreement and the SLA with respect to availability and service level commitments, the SLA controls.
This Agreement is for the sole benefit of Kinter and Customer and their respective successors and permitted assigns. No other person or entity (including any Authorized User, End User, contractor, vendor, or affiliate of Customer) shall have any rights, remedies, or claims hereunder, whether as a third-party beneficiary or otherwise.
This Agreement, any Order Form, any SOW, and any amendment hereto or thereto may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Execution by electronic signature (including DocuSign, HelloSign, Adobe Sign, or similar electronic signature services) and delivery by electronic transmission (including email or PDF) shall have the same legal effect as a handwritten signature delivered in person.
Nothing in this Agreement shall be construed to waive any right that, under applicable law, cannot lawfully be waived. Any provision of this Agreement that is found by a court or arbitrator of competent jurisdiction to waive a non-waivable right shall be modified to the minimum extent necessary to be enforceable, and the remaining provisions of this Agreement shall remain in full force and effect.
At Customer's reasonable request and Customer's sole expense, Kinter will provide reasonable cooperation with Customer's external auditors in connection with audits of Customer's financial statements or internal controls (including audits under the Sarbanes-Oxley Act, PCAOB standards, IRS examinations, or similar engagements), subject to: (a) the auditors' execution of a customary nondisclosure agreement on terms acceptable to Kinter; (b) the cooperation being limited to providing documentation and reasonable explanations of the Kinter Platform's functionality and Customer-facing controls; (c) the cooperation not requiring Kinter to disclose its confidential information, source code, security architecture, internal audit reports, or information about other customers; (d) the cooperation not constituting an audit of Kinter or its systems, which is governed solely by the Data Processing Addendum where applicable; and (e) Kinter's reasonable scheduling and operational requirements. Cooperation under this Section does not constitute Kinter's acknowledgment of any deficiency, breach, or failure of any control.
If any party believes that content within the Kinter Platform infringes a copyright, trademark, or other intellectual property right that such party owns or is authorized to act on behalf of, the party may submit a written notice to legal@kinter.ai. The notice should include: (a) identification of the work or right claimed to be infringed; (b) identification of the allegedly infringing material with sufficient detail to enable Kinter to locate it; (c) the reporting party's contact information; (d) a statement under penalty of perjury that the reporting party has a good-faith belief that the use is not authorized by the rights holder, its agent, or applicable law; and (e) the reporting party's electronic or physical signature. Kinter will review notices in good faith and may, in its sole discretion, remove or disable access to the allegedly infringing material.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect thereto. No action taken pursuant to this Agreement and no investigation by or on behalf of any party hereto shall be deemed to constitute a waiver by such party of compliance with any representation, warranty, covenant, or agreement herein. The waiver by any party hereto of any condition or of a breach of another provision of this Agreement shall not be construed as a waiver of any other condition or subsequent breach. This Agreement shall take the highest precedence over any other documents that may be in conflict therewith. Kinter will not be bound by, and specifically rejects, any term, condition, obligation, or other provision which is different from or in addition to the provisions of this Agreement or which may be in any order, receipt, acceptance, confirmation, correspondence, or other document, including without limitation any provisions or terms of any click-through agreement Kinter must accept to register with, or connect with, Customer's software, network, or platform.
The words "herein," "hereof," "hereunder," "hereto," and other words of similar import refer to this Agreement, and not to any particular section, subsection, or clause contained in this Agreement. Whenever necessary or proper herein, the singular imports the plural or vice versa, and masculine, feminine, and neutral expressions are interchangeable. The word "including" shall always be interpreted as though immediately followed by the phrase "but not limited to." The terms "commercially reasonable efforts," "reasonable efforts," "good faith," and similar terms shall mean the efforts that a similarly situated party in the same industry would undertake under similar circumstances acting in its own self-interest, and do not require either party to undertake actions that are economically infeasible, materially harmful to its business, or contrary to its commercially reasonable judgment. The parties acknowledge that they have negotiated this Agreement, and any rule of construction that ambiguities should be resolved against the drafter (including the doctrine of contra proferentem) shall not apply in the interpretation of this Agreement.
Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to act of God or a public enemy, act of any military, civil, or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm, or other like event, pandemic, disruption or outage of communications (including associated networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The party experiencing a force majeure event shall use commercially reasonable efforts to provide notice of such to the other party.