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 ANOTHER 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; (ii) YOU 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 ANY Kinter Platform AND/OR ANOTHER KINTER OFFERED SERVICES, OR RECEIVE PROFESSIONAL SERVICES FROM KINTERINC. 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 (if applicable) Order Forms and/or Statements of Work constitute the “Agreement” by and between Company and Customer.
“Kinter Competitor” means a person or entity in the business of developing, distributing, or commercializing Internet security 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 Company’s Platform. Company 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 Company’s sole discretion, provided the modifications do not materially diminish the functionality of the Kinter Platform provided by Company.
“Kinter Platform” means access, usage, etc to Company’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 Company may provide to Customer from time to time and any associated products or services offered by the Company in any form. The Kinter Platform may also be referred to as the "Kinter Platform".
“Confidential Information” means any oral, written, electronic, graphic or machine readable information including, but not limited to, that which relates to the Company's patents, patent applications, research, product plans, products, trade secrets, know-how, security information, SOC2 reports, security information, 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 the Company, which Confidential Information 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 Recipient without an obligation of confidentiality and demonstrable by the Recipient; (ii) independently developed by Customer without use of Company'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 Company 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 as Customer's account remains in good standing as determined solely by Company.
“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 a customer's account remains in good standing as determined solely by Company.
"Project Ready" means the date the Company completes any Statement(s) of Work and notifies the Customer of said completion (only if Customer has purchased a paid support package). If no date is provided, then Company shall determine the date.
“Professional Services” means any consulting services provided to Customer pursuant to a SOW which may include things like configuration services, providing onsite 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, Company 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 Company’s website at https://kinter.ai;
WHEREAS, these Terms are sometimes referred to as the Agreement (“Agreement”);
WHEREAS, Company and Customer believe it is in their mutual interest and desire to enter into an Agreement whereby Customer would use 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 addendums or amendments are subject to and governed by these Terms.
WHEREAS, the Customer may intend to use 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, Company grants to 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:
1.1 License Overview. Company 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.
1.2 Statements of Work. 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. Company will perform any Professional Services in accordance with this Agreement and the applicable SOW.
1.3 Ownership. Company retains all right, title and interest in and to any software programs, tools, specifications, ideas, concepts, inventions, know-how, processes, and techniques that Company 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, Company 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.
1.4 License to Marks. Customer trademarks or logos shall be known as Marks (collectively, the “Marks”). By agreeing to these Terms, the Customer hereby grants to Company 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).
1.5 Warranties Regarding Marks. 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 Company harmless from and against any first and third party claim(s) arising out of or related to Company’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 the Company externally in connection with any press release, advertising, publicity materials or otherwise without the prior written consent of the Company.
1.6 Restrictions. The access and use rights set forth in the 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, 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, 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 Company'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.
2.1 Overview. 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 (the “Extended Term”) unless Customer provides the Company 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.
2.2 Inflation Adjustments. 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.
2.3 Termination upon Insolvency. Company 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.
2.4 Breach of Agreement. Company 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 Company 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, Company 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 Company to a payment from the Customer an amount equal to the then in effect annual term plus three percent interest per week as a reasonable estimate of liquidated damages to the Company. This payment is payable in full by the Customer within seven days after the Company notifies the Customer of its breach.
2.5 Survival of Terms. 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 the Customer may owe, license to marks, ownership, confidentiality, warranties, notices, disputes, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
3.1 Cost of Kinter Platform. 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 Company in accordance with the fee and schedule(s) outlined in the Order Form and any additional usage costs outlined in the Order Form. Any and all fees including payments of any kind made by Customer to Company 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.
3.2 Delinquency Charges. 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 Company, in its sole discretion, refers Customer's delinquent account to a debt collection or legal firm after any period (as determined by Company due to non-payment, default by Customer, or breach of contract), then the Company may charge an additional thirty five (35%) debt recovery fee or a fee approximately equal to the costs needed to retain the a legal or debt collection firm, whichever is higher, to the total debt owed (the "Debt Recovery Fee"). The parties agree that this fee represents a reasonable estimate of Company'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 Company.
3.3 Professional Services. Anything above and beyond the scope of any SOW entered into between the Parties shall be charged at a fixed rate of Three Hundred Fifty Dollars per hour ($350.00/hour) or at a rate as mutually defined in an SOW by the parties.
3.4 Sales Tax. 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 the Company. Customer will not withhold any taxes from any amounts due to the Company.
3.5 Automatic Payments. Customer hereby authorizes Company 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 on any fees owed if the Customer wishes to pay any invoice(s) via credit card.
3.6 A La Carte Fees. 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.
3.7 Pricing Changes. Company reserves the right, in its sole discretion, to modify the pricing of its services and Kinter Platform including the 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.
3.8 Invoice Acceptance Period. All invoices issued by Company 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.
4.1 Confidentiality, Company Ownership to Intellectual Property. Company 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 Company. Accordingly, Customer shall not, without the prior express written consent of Company, 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 Company, 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 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 Company property and Intellectual Property including but not limited to the usage of the Company’s Platform, software code, designs, documents, proposals, accounts, etc shall remain at all times the sole and exclusive property of Company.
4.2 Data Collection. Company may collect various data. Please refer to the Company's privacy policy (the “Privacy Policy”) for information on how we collect, use and share personal information of Authorized Users. Customer acknowledges and agrees that its use of the Kinter Platform is subject to Company’s Privacy Policy which may be updated from time to time. The Privacy Policy is accessible at https://kinter.ai/privacy-policy.
4.3 Personal & Sensitive Data. Customer will not use the Kinter Platform to transmit or provide to Company 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).
4.4. Third Party Integrations & Apps. Customer’s use of third-party products or services that are not licensed to Customer directly by Company (“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. Company 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 Company with respect to any Third-Party Services. 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 Company to share the Customer/Client Data necessary to facilitate the Integration. Third party access keys, tokens, etc (including access tokens generated via OAuth flows, API keys supplied to Company, secret keys, etc are the sole property of the Company and Customer hereby and unequivocally transfers ownership to the Company). Customer is responsible for providing all instructions to the Third Party App provider about the use and protection of Customer Data. Company and Third-Party App providers are not sub-processors of each other. Customer shall indemnify and hold harmless Company from any and all claims arising out of violations of the Customer or its user(s) improper usage of the Third Party Integrations. Customer shall provide Company with sandbox and API access for any Integrations the Customer requests Kinter support during the term.
4.5 Compliance of Authorized Users, End Users, and Sub-Users in Accordance with Data Privacy. Customer acknowledges and agrees that the Kinter Platform will require Authorized Users and End Users to share with Company certain information which may include personal information regarding Authorized Users or End Users (such as usernames, passwords, email address and/or phone number) 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 Company, 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.
4.6 Use of Confidential Information. 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 being 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 the Company's Confidential Information while in Customer's control, Customer shall provide Company with notice thereof.
4.7 Exceptions. Customer may disclose Company'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 Company prompt written notice of such requirement or request prior to such disclosure; and (b) give Company 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.
4.8 Destruction, Return of Confidential Information. 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 Company has supplied to Customer containing or relating to the Kinter Platform, its implementation, and/or any Confidential Information disclosed by Company to Customer under this Agreement shall together with all copies thereof, be promptly and without delay returned to Company and destroyed upon termination. Upon Company's request, Customer will provide Company with written confirmation of destruction in compliance with this provision.
5.1 Company Warranty. 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.
5.2 Liability. LIMITATION OF LIABILITY: IN NO EVENT WILL THE COMPANY 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 THE COMPANY 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 THE COMPANY. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTY, AND CUSTOMER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, 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 THE COMPANY'S (OR ANY OF ITS AFFILIATES, CONSULTANTS, ASSOCIATES, CONTRACTORS, ETC – 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 ONE THOUSAND DOLLARS ($1,000) UNDER THIS AGREEMENT OR ANY AGREEMENTS RELATING TO IT. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL COMPANY (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, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION.
5.3 Reliability Warranty. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SITE IS AT ITS SOLE RISK. NEITHER COMPANY, 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.
5.4 Organization; Authority. 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.
5.5 OFAC, EU, UK Regulatory Compliance. 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.
5.6 Other Warranties. Customer 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.
5.7 Claims. In the event of any claim by Customer under this warranty, Company shall have the option to repair the Kinter Platform. In the event that Company fails to repair the Kinter Platform within a reasonable period (as defined solely by Company but no less than forty-five days per instance), Customer's sole recourse shall be to terminate the Agreement. If Customer notifies Company under this clause of its intent to terminate the Agreement for a material breach (provided 90 days written notice), Customer must provide written documentation of the breach. Customer further agrees that upon termination, Customer must pay out all remaining balances in full owed to Company for the duration of the Order Form or SOW term. In no event will refunds of any kind will be made by Company.
5.8 Voluntary Acceptance of Agreement. Customer represents and warrants that the Company 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, the Company.
6.1 Setup and Training. Company 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 Company in its sole discretion. As part of the initial setup, Company 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, Company 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 Company 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, Company shall have the right, at its sole discretion, to address and remedy any reported issues. Following acceptance, Company shall have no further obligation to make corrections except as expressly set forth in the Warranties provision of this Agreement.
6.2 Time is of the Essence. To preserve project and implementation timelines, Customer shall promptly respond to all Company inquiries within three (3) business days via email. If such notice is not received, then the Company request shall automatically be deemed accepted. Notwithstanding the foregoing, if Customer is disengaged or unresponsive for fourteen business days, Company shall consider any implementation complete and will collect any remaining balances.
6.3 Onboarding and Implementation. Customer agrees to comply with all onboarding guides, implementation instructions, and related documentation provided by Company (the “Onboarding Materials”) in connection with the setup and use of the Services. Company may update the Onboarding Materials from time to time, and Customer agrees to adhere to any reasonable changes communicated in writing.
7.1 General Indemnification. To the fullest extent permitted by law, Customer (as an indemnifying party) shall indemnify, defend, and hold harmless Company (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 the 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, or any of Customer’s officers or agents, of articles or services to be supplied in the performance of this Agreement.
7.2 IP Indemnification. In addition to the foregoing, the Customer hereby and irrevocably forever explicitly waives any claims against Company and agrees to also indemnify, defend, and hold harmless related to Customer’s unauthorized customization, modification, or other alterations to the Kinter Platform, violations of this Agreement and/or any other agreements between Company and Customer, Company's performance or non performance of the duties outlined in this Agreement, any third party APIs/services and their associated terms and conditions, privacy policies, etc (including any possible violations by the 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 Company and its affiliate(s), etc and/or mis-use 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.
7.3 Attorneys' Fees. The foregoing indemnity shall include, without limitation, reasonable fees of attorneys, consultants and experts and related costs and Company’s costs of investigating any claims. In addition to Customer’s obligation to indemnify Company, Customer specifically acknowledges and agrees that it has an immediate and independent obligation to defend Company from any claim which 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 the Company and continues at all times thereafter.
7.4 Customer’s Compliance. 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. Company’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 liable Company.
8.1 Procedure for Notices. Any notice made to the Company required to be given pursuant to this Agreement shall be in writing by hand directly at its address hereinabove first mentioned. 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. 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.
8.2 Dispute Resolution. 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 the Company 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.
8.3 General Dispute Procedures. 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, the Company shall have the right to commence arbitration proceedings against Customer within fourteen (14) days after any notice of a dispute is made by Company. Customer agrees that, to the fullest extent permitted by law, Customer may only bring a claim against the Company 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.
8.4 ARBITRATION AGREEMENT.
8.4.1 Claims Subject to Arbitration. To the fullest extent permitted by applicable law, Kinter Inc 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 we 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 thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Arbitration Agreement shall survive termination of this Agreement.
8.4.2 Arbitration Forum. 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 Company. 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.
8.4.3 Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. You and we 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 we and you agree otherwise, or the applicable rules dictate otherwise, any arbitration hearings will take place in the county (or parish) outlined in Section 8.2 and you and a Kinter representative will be required to attend in person. 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.
8.4.4 Sanctions. 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.
8.4.5 Confidentiality of Arbitration. 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 any of the other, or which would reasonably be expected to lead to unwanted or unfavorable publicity to either of the Parties or entities.
8.4.6 Offer of Settlement. 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.
8.4.7 Requirement of Individualized Relief. 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 WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR 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 we 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), then 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.
8.4.8 Severability of this Arbitration Provision. 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.
8.5 Time Limitation for Claims. 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 COMPANY 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 THE COMPANY (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 STATUTES 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 COMPANY, AND THEIR SUCCESSORS AND ASSIGNS, AND THEIR 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.
8.6 Governing Law. 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 for the International Sale of Goods does 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.
9.1 Classification. 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.
10.1 Overview. This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
11.1 Waiver. 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.
11.2 Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable for 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.
11.3 Assignability. The license granted hereunder is personal to Customer and may not be assigned by any act of Customer without the consent of Company. Customer may not assign or otherwise transfer this Agreement, in whole or in part, without the Company’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.
11.4 Remedies. The Customer acknowledges that any breach or threatened breach of its obligations under this Agreement will cause irreparable harm to Company therefore the Company 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 the Company is entitled to a permanent injunction, in addition to and not in limitation of any other rights and remedies available to the Company 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, the Company 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 the Company 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.
11.5 Export Compliance. 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.
11.6 Amendment to Terms. Company 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 our Customer 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.
11.7 Restrictions. Company reserves the right to withdraw or amend the Kinter Platform, and any service or material it provides via Kinter Platform, in its sole discretion without notice. Company will not be liable if for any reason all or any part of 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 Company. From time to time, Company may restrict access to some parts of Kinter Platform, or the entire Kinter Platform, to users, including Authorized Users.
11.8 Links to External Sites. Kinter Platform may contain links to third party web sites or services that are not owned or controlled by Company and/or its affiliates.
The Company has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. Company does not warrant the offerings of any of these entities/individuals or their websites.
CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY 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 WEB SITES OR SERVICES.
COMPANY STRONGLY ADVISES CUSTOMER TO READ THE TERMS OF SERVICE AND PRIVACY POLICIES OF ANY THIRD PARTY WEB SITES OR SERVICES THAT IT VISITS.
11.9 Error Reporting. Customer may provide Company either directly at security@kinter.ai or via third party sites and tools with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to our Service (“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) Company may have development ideas similar to the Feedback; (iii) Feedback does not contain confidential information or proprietary information from Customer or any third party; and (iv) Company is not under any obligation of confidentiality with respect to the Feedback. In the event the transfer of the ownership to the Feedback is not possible due to applicable mandatory laws, Customer grants Company and its affiliates an exclusive, transferable, irrevocable, free-of-charge, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) Feedback in any manner and for any purpose.
11.10 Third Party Tools Used. The Company may use, from time to time, third party sites and tools. A non-exhaustive list may include:
11.10.1 Mem0. Mem0 is a universal memory layer for artificial intelligence applications provided by Embedchain, Inc. Please read their Privacy Policy here: https://mem0.ai/privacy-policy.
11.10.2 Sentry. Sentry is an open-source error tracking solution provided by Functional Software Inc. More information is available here: https://sentry.io/privacy/.
11.10.3 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 our 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. For more information on the privacy practices of Google, please visit the Google Privacy Terms web page: https://policies.google.com/privacy?hl=en.
Company also encourages Customer to review Google's policy for safeguarding its data: https://support.google.com/analytics/answer/6004245.
11.10.4 Mixpanel. Mixpanel is provided by Mixpanel Inc. Customer can prevent Mixpanel from using your information for analytics purposes by opting-out. To opt-out of Mixpanel service, please visit this page: https://mixpanel.com/optout/. For more information on what type of information Mixpanel collects, please visit the Terms of Use page of Mixpanel: https://mixpanel.com/terms/.
11.10.5 Facebook. Facebook, Facebook Ads, Facebook Pixel, and its related products are provided by Meta Platforms Inc. For more information on what type of information Meta Platforms collects, please visit the Privacy Policies: https://www.facebook.com/about/privacy/previous.
11.10.6 Amazon. Amazon and its associated system(s) are operated by Amazon.com Services LLC. By using the Kinter Platform you agree to abide by all requirements of AWS, Amazon API(s) and may not abuse them or violate their terms and conditions. The Amazon terms and API license are listed here: https://developer-docs.amazon.com/sp-api/docs/policies-and-agreements.
11.10.7 OpenAI. OpenAI and its associated system(s) are operated by OpenAI OpCo, LLC. For more information on the privacy practices of OpenAI, please visit the OpenAI Privacy Policy web page: https://openai.com/policies/privacy-policy/.
11.10.8 Anthropic. Anthropic and its associated system(s) are operated by Anthropic PBC. For more information on the privacy practices of Anthropic, please visit the Anthropic Privacy Policy web page: https://www.anthropic.com/legal/privacy.
11.10.9 Google Gemini. Google Gemini is a generative artificial intelligence chatbot and virtual assistant service offered by Google. For more information on the privacy practices of Google, please visit the Google Privacy Terms web page: https://policies.google.com/privacy.
11.10.10 Auth0. Auth0 provides authentication and authorization services for applications, APIs and users, offered by Okta Inc. For more information on the privacy practices of Okta, please visit the Okta Privacy Policy web page: https://www.okta.com/legal/privacy-policy/.
11.11 Other Service(s). The Company uses various other APIs and integrations in its platform, of which a list of commonly supported apps is available at: http://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.
11.12 Data Protection. Both parties will comply with all applicable laws and regulations relating to data protection, and each party will cooperate with the other party for the 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”).
11.13 Non Disparagement. To the fullest extent permitted under applicable law, Customer agrees it shall not disparage the Company or any of its past and present parent companies, subsidiaries, related companies and affiliates, owners, members, managers, officers, directors, employees, agents, successors and assigns.
11.14 Suggestions. If Customer provides or makes available suggestions, comments, ideas, improvements, or other feedback or materials to Company in connection with this Agreement Company will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
11.15 Subcontractors. Customer will ensure that any subcontractors with access to any Company product(s) or other Company 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.
12.1 Overview. 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. Company 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 Company must accept to register with, or connect with, Customer's software, network, or platform.
12.2 Construction. 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.”
12.3 Force Majeure. 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.