These Terms of Service contain the terms and conditions that govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “Services”).
The Services are offered to you subject to your acceptance, without modification (other than Special Terms (as defined below) agreed by the parties pursuant to these Terms of Service), of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, our Privacy Policy at www.kygtrade.com/company/trust-center), the Guidelines (as defined below) and any future modifications thereof, and procedures that may be published from time to time on the Platform or made available to you on or through the Services (collectively, the “Terms”). When accepted by you (as defined below), these Terms form a legally binding contract between you and KYG (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, AND/OR OTHERWISE USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, OR OTHERWISE USE THE PLATFORM OR THE SERVICES.
KYG may, in its sole discretion, elect to suspend or terminate access to, or use of the Services to anyone who violates these Terms.
If you register for a free trial of the Services, the applicable provisions of these Terms will govern that free trial.
The original language of these Terms is English. KYG may make translations available for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.
1. Definitions
Account: the primary means for accessing and using the Services, subject to payment of a Fee designated in the selected Plan;
Additional Terms: Provisions applicable to the Client’s use of a particular feature as indicated by KYG in relevant areas of Services;
Attestation: the process of researching and finalizing a regulatory attribute linked to an Item.
Attestation Category: the category for an Attestation such as HTS, Export, ESG, Preferential Origin, Non-Preferential Origin, Value, Other;
Authorization: the set of rights and privileges on the Platform assigned to a User by a Client;
Beta Service: A feature or functionality of Services that is in development or has not been released as a final product which KYG has made available to Client for testing and evaluation;
Client: a natural or legal person who has accepted these Terms with KYG;
Client Data: Files and any other digital data and information, which is subjected to the Services or otherwise inserted to the System by the Client (including the specific Users, Products, persons, Organizations, Bills of Material, Technical Specifications, Attestations, Classifications, and Activities associated with the Client);
Content: any data and information available through Services or contained within the structure of the System, regulations, rulings, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
Fee: regular payment for using the activated Account;
Files: documents of any kind (images, spreadsheets, text files, etc.) that are inserted to the System by the Client, and usually associated with a particular Product or Attestation;
Free Trial: temporary access for the purposes of trying out the Platform and Services in accordance with any selected Plan without paying a Fee;
Guidelines: additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the Services;
Items: the physical goods, technical information, or software that a Client is creating Attestations for.
KYG Materials: the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Services;
KYG: KYG Trade Inc., a corporation established under the laws of the State of Delaware (United States of America), having its principal place of business at 220 Newport Center Dr., Newport Beach, California, 92660, USA;
Organization: legal persons (such as companies) and other entities with which the Client does business with;
Plan: the Services selected by Client through a Sales Order, specifying the criteria, features, usage limits, and fees as applicable;
Platform: KYG Global Trade and Tariff Management (GTM) Compliance Platform, and KYG Trade ESG Attestation Platform™; is KYG’s proprietary, cloud-based software application and integrated technology solution, accessible via the web, and application programming interfaces (APIs).
Reseller: third party entity that (i) purchases Services from KYG and resells such Services to Clients, (ii) bills such Clients directly and (iii) provides such Clients with customer service;
Sales Order: the written agreement or electronic confirmation by which Client agrees to product subscriptions, services, fees, and term, which may be documented as: (i) a Sales Order; (ii) a Statement of Work (SOW); (iii) a Master Services Agreement (MSA); (iv) Client’s online plan selection; or other similar agreement. In the event of any inconsistency, the Sales Order takes precedence over these Terms of Service.
Sensitive Information: means credit or debit card numbers; financial account numbers or wire instructions; government-issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection;
Services: the Web Site, System, Content, Platform and all content, services and/or products available on or through the Platform;
System: the integrated cloud computing solution for providing the Services, including applications, software, hardware, data bases, interfaces, associated media, documentation, updates, content, new releases and other components or materials provided therewith;
User: a natural person granted with the Authorization to use the Account on behalf of a Client;
Web Site: the compilation of all web documents (including images, php and html files) made available via www.kygtrade.com, www.kyg.ai, or its sub domains or domains with identical names under other top domains, and other domains owned by KYG.
2. Authority to Enter into these Terms with KYG
The use of the Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
These Terms are accepted as soon as one of the following occurs first:
A. the person has received the confirmation of the creation of the Account and necessary credentials from KYG in order to log in to his/her/its Account; or
B. for those Services and parts of the Web Site the use of which is not dependent on creating an Account, upon the moment of gaining access to such services.
You may not, without KYG’s prior written consent, access the Services (i) for production purposes, (ii) if you are a competitor of KYG , (iii) to monitor the availability, performance or functionality of the Services or (iv) for other benchmarking or competitive purposes.
Once accepted, these Terms remain effective until terminated as provided for herein.
3. Modifications to Terms
KYG reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Platform or the Services. Please check these Terms periodically for changes. Your continued use of the Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Unless KYG says otherwise in any notice issued, any amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.
4. Our Responsibilities
4.1. Provision of Services
KYG will (a) make the Services, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which KYG shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond KYG’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
4.2. Protection of Client Data
KYG will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Client Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by KYG personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Client or User expressly permit in writing.
KYG may use service providers to perform the Services. KYG will make commercially reasonable efforts to ensure that data transfers to service providers meet requirements applicable to Clients’ processing of data. For information about how we collect, use, disclose, and otherwise process information on such data transfers, please see our Privacy Policy available at: https://www.kygtrade.com/company/trust-center.
By agreeing to these Terms, the Client authorizes KYG (a general written authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679) to engage the following service providers for the purposes of performing the Services. KYG shall provide 10 business days advance notice before engaging any new service providers under KYG’s general authorization.
List of service providers processing Client Data can be provided upon request.
5. Using the Services
5.1 Establishing an Account
Certain features, functions, parts or elements of the Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
A. complete the sign-up form on the Web Site or alternative process provided by KYG or a Reseller, if access to the Services is purchased from a Reseller; and
B. accept these Terms by clicking “Log In”, “Register”, or other similar button, or by accepting the acknowledgement in the user profile within the application.
Each Client may have only one Account. If several persons need to use an Account on behalf of Client, Client must designate such persons as Users. Each such User shall be subject to the restrictions set forth in these Terms.
If Client has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of Client when using the Account. KYG is not responsible for and shall have no liability for verifying the validity of Authorization of any User. However, KYG may, in its discretion, request additional information or proof of the person’s credentials. If KYG is not certain if a User has been granted Authorization, KYG may, in its sole discretion, prevent such User from accessing the Services.
A User may be associated with multiple Clients and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
The Client and any User associated with an Account must provide KYG with true, accurate, current, and complete information about the Client, Users or Account and keep it up to date.
5.2 Logging Into an Account
KYG shall provide Client with a username and password (“Login Credentials”) to be used to log in to its Account unless the Client uses the single sign-on feature or another service to log in. These Login Credentials must not be used by multiple persons. If Client has designated several Users, each User will be provided with separate Login Credentials. Client and each User are responsible for keeping confidential all login credentials associated with an Account. Client must promptly notify KYG:
A. of any disclosure, loss or unauthorized use of any Login Credentials;
B. of a User’s departure from the Client’s organization;
C. of a change in a User’s role in the Client’s organization;
D. of any termination of a User’s right for any reason.
5.3 Termination of Account
Client may terminate these Terms as provided in Section 17.
5.4 Fees
The use of an Account is subject to a Fee as set forth in the applicable Sales Order. Different rates apply to different Plans. The applicable Fee is charged in advance on annual payment intervals, unless agreed otherwise between parties. Usage beyond the limits specified in the Sales Order will be calculated based on the usage rate and measurement unit specified in the Sales Order and billed automatically. All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. If, after signing up, Client elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
5.5 Changing Plans
Client has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by KYG. In such an event, the Client’s credit card or bank information on file with KYG will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan. If Client does not have credit card or bank information on file, KYG will invoice Client for the applicable Fees for the next payment interval at the rate stipulated in the new Plan.
Downgrading of the current Plan may cause the loss of features, functionality, or capacity of the Account, as well as the loss of Client Data. Downgrading your current Plan will not result in any refund, proration, or credit for amounts already paid, and any changes to Fees will apply only to future billing periods.
5.6 Free Trial
A new Client may be entitled to a Free Trial, unless the Client has applied for the Account as a result of an ongoing marketing campaign organized by KYG in co-operation with its partners. The Client is not required to provide any credit card information during the period of Free Trial. The Free Trial will expire within thirty (30) days, unless otherwise agreed in writing. If the period of Free Trial has expired, the Account will be automatically deactivated. In order to prevent deactivation or to reactivate the Account, the Client is required to select a suitable Plan and pay the first Fee. If the Client does not pay the first Fee within two (2) weeks as of the expiry of the Free Trial, KYG has the right to permanently delete the Account, including all Client Data therein.
At any stage during the Free Trial the Client may sign up to a paid Plan of the Services and in doing so their Free Trial will automatically expire.
In addition to the current collection of Plans, KYG may offer credits, rebates, special discounts and motivation schemes (for example finder’s fees, etc.).
6. Payment
The following provisions are applicable only if you purchase access to the Services directly from KYG. If you purchase access to the Services through a Reseller, the payment terms are set forth in the agreement with your Reseller.
6.1 Payment Card Authorization
KYG may seek pre-authorization of Client’s payment card or bank account prior to your purchase of Services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. You represent and warrant that you have the right to use any payment that you submit in connection with a transaction subject to these Terms. By providing a debit card, credit card or other payment method accepted by KYG, you authorize us (or our third-party payment processor) to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms.
You agree to provide KYG updated information regarding your payment card or bank account upon KYG’s request and any time the information earlier provided is no longer valid. In the event legal action is necessary to collect on any balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.
6.2 Electronic Invoice
If KYG has not sought pre-authorization of your payment card, then before the end of each payment interval, Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.
6.3 Overage Charges
If Client fails to make any payments when due, without limiting KYG’s other rights and remedies: (i) KYG may require the Client to pay interest on the delay (penalty for late payment) for the period as of the time the payment obligation falls due until conforming performance is rendered; (ii) Client shall reimburse KYG for all costs incurred by KYG in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, KYG, in its sole right and discretion, may terminate Client’s Account and all other Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. The interest rate for late payment penalties shall be one and one-half percent (1.5%) per month; provided, however, if any interest paid to KYG is determined to be in excess of the then legal maximum rate, then that portion of each interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of amounts owing under Section 6.2. Upon calculation of the penalty for late payment, one year shall be deemed to contain 365 calendar days.
7. Client Data
7.1 Uploading Client Data to Platform
If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users, persons and Organizations) whether posted and/or uploaded by you or made available on or through the Services by KYG. By uploading Client Data to the Platform, Client authorizes KYG to process the Client Data. The Client is responsible for ensuring that:
A. the Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data that violates the terms of these Terms, the rights of KYG, or other persons or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful; and
B. the Client and all of the Users associated with the Account have the necessary rights to use the Client Data, including to insert it into the Platform and process it by means of the Account.
7.2 No Guarantee of Accuracy
KYG does not guarantee any accuracy with respect to any information contained in any Client Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not KYG, is entirely responsible for the accuracy of all Client Data that is uploaded, posted, transmitted, or otherwise made available through the Services, as well as for any actions taken by KYG or other Clients or Users as a result of any inaccuracies of such Client Data.
7.3 Sensitive Information and Unlawful Client Data
You acknowledge and agree that you will not use the Services in any way that violates these Terms, to process Sensitive Information, or Client Data that in any manner is prohibited by law.
KYG is not obliged to pre-screen, monitor or filter any Client Data or its processing by the Client in order to determine if it is Sensitive Information or unlawful in nature. However, if KYG has reason to believe that the Client is processing unlawful Client Data or Sensitive Information, or the action of its processing is unlawful by in nature, KYG has the right to:
A. notify the Client of such unlawful Client Data or Sensitive Information;
B. deny its publication in the Services;
C. demand that the Client bring the unlawful Client Data into compliance with these Terms and applicable law;
D. temporarily or permanently remove the unlawful Client Data, or Sensitive Information from the Services, restrict access to it or delete it.
If KYG is presented convincing evidence that the Client Data is not unlawful or Sensitive Information, KYG may, at its sole discretion, restore such Client Data or Sensitive Information, which was removed from the Services, Account or access to which was restricted.
In addition, in the event KYG believes in its sole discretion Client Data violates applicable laws, rules or regulations or these Terms, or is Sensitive Information, KYG may (but has no obligation), to remove such Client Data at any time with or without notice.
Without limiting the generality of the preceding sentence, KYG complies with the Digital Millennium Copyright Act, and will remove Client Data from the Platform upon receipt of a compliant takedown notice.
KYG Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Services where your communications would be subject to such laws. You may not use the KYG Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the Terms.
No Sensitive Information. YOU ACKNOWLEDGE THAT THE KYG SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY YOU AGREE NOT TO USE THE KYG SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.
7.4 Compelled Disclosure
KYG may disclose a Client’s confidential information to the extent compelled by law to do so. In such instance, KYG will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If KYG is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which KYG is a party, and Client is not contesting the disclosure, Client will reimburse KYG for its reasonable cost of compiling and providing secure access to that confidential information.
8. Services
8.1 Use of the Services
Subject to these Terms, and the payment of the applicable service Fee, KYG grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use the Services to:
A. collect, store, reference, link, and organize Client Data and monitor their evolvement through the next Stages, add new Users and grant them Authorizations, collaborate with other Users and external suppliers and customers, assign activities to a particular User;
B. modify and delete Client Data;
C. customize the standard features or functionality of the Services;
D. receive reasonable help and guidance from KYG regarding the use of the Services.
If KYG determines Client usage of the Services to be outside of the permitted and intended use as outlined herein, or bandwidth usage of the Service or any features or functionality to be significantly excessive in relation to other Users, KYG reserves the right to suspend respective Client Account, (or part thereof) until Client assures KYG that Client shall refrain from further abuse of the Services.
8.2 Technical Support
KYG shall provide reasonable technical support to Client and its authorized User at the reasonable request of the Client. KYG shall respond to enquiries of support from a Client utilizing the contacts set forth below as soon as reasonably possible. Responding to enquiries of Clients and Users who have accepted these Terms but do not have an Account may be less expedient, or may not occur at all.
The contacts for all enquiries of support are:
- instant messaging,
- built-in notification application on the Web Page, or
- e-mail: support@kygtrade.com
Notwithstanding the foregoing, if you purchased access to the Services from a Reseller, then first-line technical support will be provided by the Reseller and not by KYG.
8.3 Modifications to Service
KYG reserves the right to modify the Services or any part or element thereof from time to time without prior notice, including, without limitation:
A. rebranding the Services at its sole discretion;
B. ceasing providing or discontinuing the development any particular KYG Service or part or element of the Platform temporarily or permanently;
C. taking such action as is necessary to preserve KYG’s rights upon any use of the Services that may be reasonably interpreted as violation of KYG’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.
As applicable, Client may be notified of such modifications when logging in to the Account. Modifications, including changes in applicable rates for the Services, will become effective thirty (30) days after notice to Client. If the Client does not accept the modification, the Client shall notify KYG or Reseller (if Client purchased access to the Services from a Reseller) at least fifteen (15) days before the effective date of the modification, and these Terms will terminate on the effective date of the modification.
The Client’s continued use of the Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. KYG shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Services, or any part or element thereof.
8.4 Additional Features
KYG may from time to time make additional features available through the Services, which may be subject to Additional Terms. The Client’s use of any such feature is subject to their acceptance of Additional Terms presented within the relevant feature or these Terms of Service.
Emails sent to KYG are processed by Gmail in accordance with the Google Terms of Service.
8.5 Beta Services
KYG may offer certain features of functionality for the purpose of testing and evaluation (“Beta Service” or “Beta Services”). KYG reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to the Client. The Client agrees that KYG will not be liable to the Client or to any third party for any harm related to, arising out of the Client’s use of the Beta Services, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.
9. Data Processing Contract
For the purposes of all laws and regulations, including the laws and regulations of the United States and European Union such as the General Data Protection Regulation, 2016/679 and California Consumer Privacy Act, Cal. Civ. Code Section 1798.100 et. seq, applicable to KUG for purposes of processing personal data or information of a data subject, these Terms constitute the data processing contract between the Client as the data controller and KYG as the data processor.
“Personal Data” means any information relating to an identified or identifiable natural person that is processed by KYG on behalf of Client and any information defined as “Personal Data” “Personal Information” “Personally Identifiable Information” or the like under applicable privacy and data protection laws.
The Client hereby instructs KYG to process the data as described in these Terms.
9.1 Subject matter and nature of processing
KYG provides the Platform where the Client, as the data controller, can collect, store and organize the Personal Data of data subjects determined by the Client. Client shall determine the scope, purposes, and manner by which the Personal Data may be accessed or processed by KYG. KYG shall only Process the Personal Data on behalf of Client strictly in accordance with Client’s instructions and only as instructed in writing by Client for the purposes authorized by Client in accordance with these Terms.
The Platform has been designed to work as a trade and ESG regulatory attestation platform but, to the extent not regulated by these Terms, the Client decides how they use the Platform.
9.2 Duration
KYG will process data on behalf of the Client until the termination of the Services in accordance with these Terms. Upon termination and assuming the Client has had a paid Account, KYG will store the Client’s data for a period of six months, should the Client wish to reopen the Account to resume the use of the Services or to export Client Data, unless instructed otherwise by the Client. The content of closed Free Trial Accounts are deleted within 30 days of the date of closure. After the aforementioned periods, Contents of the Accounts may still be kept as part of KYG’s technical server archival backups for an additional three months. KYG deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data.
9.3 Parties’ rights and obligations
The Client’s rights and obligations regarding Client Data are provided in sections 4 through 10 of these Terms. Client represents that it has the right to lawfully provide the Personal Data to KYG for the processing to be performed in relation to the Services provided herein.
KYG agrees to treat all Personal Data as confidential information and will not disclose such Personal Data without Client’s prior written consent except as provided in these Terms in compliance with applicable law and to those personnel who need to know the confidential information in order to carry out the Services.
KYG ensures that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. If Client objects to any of KYG’s service providers, listed above in Section 4,2, Client shall inform KYG of such objection before it uses the Services or provides Personal Data to KYG at the following email address: privacy@kyg.ai.
KYG shall, to the extent legally permitted, promptly notify Client if KYG receives any request from a data subject to exercise any data subject rights in relation to Personal Data, such as: access, rectification, restriction of processing, erasure, data portability, objection to the processing, or not to be subject to automated individual decision making, or any consumer request allowable under the applicable data privacy law. KYG shall assist in responding to data subject rights’ requests by providing all information necessary and appropriate, while implementing appropriate technical and organizational measures for the fulfillment of Client’s obligations to respond to a data subject request.
KYG takes all measures required pursuant to Article 32 of Regulation (EU) 2016/679, including but not limited to implementing appropriate technical and organizational measures to protect personal data received from the controller.
KYG shall provide reasonable assistance to Client with any data protection impact assessments.
KYG undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Client as the data controller.
KYG shall not: (i) sell Personal Data; (ii) retain, use, or disclose Personal Data for any purpose other than for the specific purpose of performing the Services, including retaining, using or disclosing Personal Data for a commercial purpose other than providing the Services; and (iii) retain, use, or disclose Personal Data outside of the direct business relationship between Client and KYG.
9.4 Types of Personal Data Processed and Categories of Data Subjects Whose Personal Data is Processed
KYG collects, and processes the Personal Data and categories of data subjects listed and described in KYG’s privacy policy (available within the Trust Center: https://www.kygtrade.com/company/trust-center), which is incorporated herein by reference.
10. Restrictions
10.1 Prohibited Activities
Client and its authorized Users may use the Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
A. use the Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
B. copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that KYG is not permitted by that applicable law to exclude or limit the foregoing rights;
C. use the Services or any part or element thereof unless it has agreed to these Terms.
10.2 Certain Uses Require KYG Consent
The Client or any User may not, without KYG’s prior express written consent (e-mail, fax, etc.):
A. sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the Services available in whole or in part to any third persons, unless such third person is another authorized User of the same Client;
B. use the Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;
C. use the Services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by KYG;
10.3 Trade Control Compliance
The Client, any user, reseller, or agent (“Third Party”) hereby represents, warrants, covenants, and agrees that, with respect to the Services:
A. Third Party has complied and shall comply with, and shall cause its directors, officers, employees, and agents to comply with, U.S., EU, and any other applicable foreign economic, trade, and financial sanctions laws and regulations, including economic and trade sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the Department of State (collectively, “Sanctions”), and U.S., EU and applicable foreign laws and regulations pertaining to export controls, including those administered by the U.S. Departments of Commerce and State (collectively, “Trade Controls”).
B. Third Party shall take no action, directly or indirectly, that would cause KYG or any of its subsidiaries or affiliates, or any of their respective officers, directors, employees, or representatives, to violate any Trade Controls.
C. Neither the Third Party nor any of its officers or directors, employees, and any agents or other representatives acting on their behalf (i) has been or is designated on any Sanctions- or export- related list of restricted or blocked persons, including designation on OFAC’s List of Specially Designated Nationals and Blocked Persons (the “SDN List”) or OFAC’s Sectoral Sanctions Identifications List (the “SSI List”), (ii) is located in, organized under the laws of, or resident in any country or territory that is itself the subject of any economic or financial sanctions by any Governmental Authority, including, but not limited to, Cuba, Iran, Syria, North Korea, Venezuela and the Crimea Region of Ukraine, (iii) is or has been greater than 50% owned or controlled by any Person or Persons described in clause (i) or (ii) (collectively with (i) and (ii), a “Restricted Person”), or (iv) has or will provide the Services to any Persons described in clauses (i)-(iii).
D. Third Party will promptly notify KYG if Third Party or any personnel employed by or affiliated with Third Party (i) commits any actual or potential breach of Trade Controls relation to the Services, or (ii) becomes a Restricted Person.
E. KYG shall have the right to immediately terminate the access to, or use of the Services without notice or liability to Third Party, if Third Party, or any person employed by or affiliated with Third Party takes any action in violation of the provisions described herein or if KYG determines, in its sole discretion, that the Third Party’s continued use of the Services could violate Trade Controls.
11. Privacy
KYG takes the privacy of Clients and Users very seriously. KYG’s Privacy Policy at www.kygtrade.com/company/trust-center is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs KYG’s collection, use, and disclosure of Client’s or User’s personal information.
12. Intellectual Property Rights
12.1 KYG’s Intellectual Property Rights in the Services
The Services, KYG Materials, KYG trade names and trademarks, domains, and any parts or elements thereof are solely and exclusively owned and operated by KYG and its third-party vendors and hosting partners. KYG Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. KYG, its affiliates and licensors retain all right, title and interest in such Services, KYG Materials, KYG trade names, domains, and trademarks, and any parts or elements. Your use of the Services and KYG Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of KYG Materials is strictly prohibited unless you have received the express prior written permission from KYG or the otherwise applicable rights holder. KYG reserves all rights to the Services, KYG Materials and KYG trade names, domains, and trademarks not expressly granted in the Terms.
12.2 Content Owned by KYG
Subject to these Terms and the payment of the applicable service Fee, KYG grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the Services or as otherwise permitted by applicable law.
12.3 Client Data
A. KYG may use Client Data in an aggregated or anonymized format for research, educational and other similar purposes. KYG may not otherwise use or display Client Data without Client’s written consent. KYG respects your right to exclusive ownership of your Client Data. Unless specifically permitted by you, your use of the Services does not grant KYG the license to use, reproduce, adapt, modify, publish or distribute the Client Data created by you or stored in your Account for KYG’s commercial, marketing or any similar purpose. Client expressly grants KYG the right to use and analyze aggregate system activity data associated with use of the Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the Services operate, and to create new features and functionality in connection with the Services in the sole discretion of KYG.
B. Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the Service. In connection with Client Data, Client affirms, represents, and warrants that: (i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorizes KYG to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Client Data in a manner consistent with the intended features and functionality of the Services and these Terms, and (ii) Client Data, KYG’s or any KYG Licensee’s use of such Client Data pursuant to these Terms, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by KYG to any third party for the performance of any Services Client has chosen to be performed by KYG or for the exercise of any rights granted in these Terms, unless Client and KYG otherwise agree.
12.4 Feedback
If Client or a User provides KYGs with any comments, bug reports, feedback, or modifications for the Services (“Feedback”), KYG shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Services.
Client or User (as applicable) hereby grants KYG a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose. KYG shall have the right to modify or remove any Feedback provided in the public areas of the Web Site if KYG deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
13. Third-Party Sites, Products and Services
The Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, KYG does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, KYG makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites.
ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Any content referred to as community provided is provided by third parties and not developed or maintained by KYG. By using any community marked code or libraries in your software development, you acknowledge and agree that KYG is not in any way responsible for the performance or damages caused by such community provided code or library.
14. Disclaimers; No Warranty
UNLESS OTHERWISE EXPRESSLY STATED HEREIN, THE KYG SERVICES, KYG MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE KYG SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KYG AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY KYG, KYG AND ITS AFFILIATES DO NOT WARRANT THAT THE KYG SERVICES AND ANY CONTENT, CLIENT DATA SERVICES, AI ALGORITHMS OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE KYG SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE KYG SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE KYG SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY KYG, KYG AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE KYG SERVICES, KYG MATERIAL, AI ALGORITHMS, OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Indemnification
You agree to defend, indemnify and hold harmless KYG and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Services, KYG Materials, representations made to KYG, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. KYG reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify KYG, and you agree to cooperate with such defense of these claims.
16. Limitation of Liability
16.1 No Liability
KYG shall not be liable to the Client or User for any consequences resulting from:
A. any modifications in these Terms, calculation and rates of Fees, the Services, KYG Material, or any part or element thereof (including but not limited to Account), including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the Services or KYG Material;
B. deletion of, corruption of, or failure to store any Client Data;
C. use of Client Data by the Client or any of the Users associated with the Account;
D. upgrading or downgrading the current Plan;
E. any disclosure, loss or unauthorized use of the login credentials of Client or any authorized User due to Client’s failure to keep them confidential;
F. the Client’s use of the Account or the Services by means of browsers other than those accepted or supported by KYG;
G. the application of any remedies against the Client or authorized Users by KYG, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the Services or any part or element thereof;
H. the differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
I. KYG’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
In addition, KYG and its affiliates shall not be liable to the Client for any claim by any User, person, Organization or third persons against the Client arising out of the Client’s failure to:
A. provide KYG with accurate information about the Client, Users or Account;
B. notify KYG of any reasons due to which a User does not have the right to use the Account on behalf of the Client;
C. provide any Products which it has agreed to provide to such a person or Organization (whether such failure arises as a result of KYG’s negligence, breach of these Terms or otherwise);
D. ensure the lawfulness of the Client Data;
E. obtain the necessary rights to use the Client Data; or
F. abide by any of the restrictions described in these Terms.
16.2 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF KYG AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CLIENT LESS REFUNDS REBATES AND CREDITS HEREUNDER FOR THE KYG SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.
16.3 Exclusion of Consequential and Related Damages
IN NO EVENT WILL KYG OR ITS AFFILIATES HAVE ANY LIABILITY TO CLIENT ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A KYG OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A KYG’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
17. Termination of These Terms
17.1 For Convenience
Termination rights are determined by the Sales Order and these Terms, with the Sales Order taking precedence in the event of any inconsistency. These Terms may be terminated for convenience in the following situations;
A. by the Client any time by providing written notice to its designated KYG representative or, if Client has not been assigned a representative, by emailing support@kygtrade.ai; or if the Client is paying for the Service via a Reseller, by means agreed upon between the Client and the Reseller; Client shall remain responsible for all Fees associated with the current term;
B. by KYG upon decision to end provision of the Services and close the Platform; or
C. immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.
17.2 For Default
These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:
A. by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or
B. immediately by either party if the other party breaches its obligations, as applicable under Sections 12 [Intellectual Property Rights], 15 [Indemnification], or 10 [Restrictions] of these Terms.
17.3 Effect of Termination
Upon termination of these Terms,
A. KYG shall deactivate and permanently delete the Account, within six months of the effective date of termination of these Terms. If the Client has specifically requested for an earlier deletion of the Account, KYG shall fulfill such request within 1 month of its receipt of such request.
B. Client must:
- stop using and prevent the further usage of the Services, including, without limitation, the Platform;
- pay any amounts owed to KYG under these Terms; and,
- discharge any liability incurred by the Client before under these Terms prior to their termination; and
C. The following provisions shall survive the termination of these Terms: Sections 1, 7.4, 10, 11, 12, 14, 15, 16, 18 and 19.
17.4 Remedies
If KYG terminates these Terms as a result of an uncured breach by a Client or User, KYG is entitled to use the same or similar remedies against any other persons who use the Services in conflict with these Terms. Notwithstanding the foregoing, KYG may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the Services.
If KYG has reasonable grounds to believe that the Client’s or User’s use of the Services, including the Account may harm any third persons, KYG has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
KYG has the right to suspend access to all or any part of the Service, including removing Content, at any time for violation of this Agreement or to protect the integrity, operability, and security of the Service, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to the Service or any third party, KYG typically provides notice in the form of a banner or email on or before such suspension. KYG will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Service.
18. Who You Are Contracting With
18.1 General
KYG with whom Client is contracting depends on the domicile of the Client. KYG determines the domicile of the Client based on the country indicated in the billing address of the User who concludes these Terms on behalf of the Client. During the Free Trial, KYG determines the domicile of the Client based on the location indicated in the IP-address of the User who concludes these Terms on behalf of the Client. By accepting these Terms, the Client is contracting with KYG Trade, Inc.
18.2 Governing Law and Jurisdiction
In the event of a dispute, controversy or claim arising out of or in relation to these Terms, including but not limited to the formation, validity, breach or termination thereof, the parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below. Notwithstanding the foregoing and subject to the terms and conditions set forth below, either party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law. Should an amicable settlement between parties not be possible, the dispute shall be finally solved in court or by arbitration as designated herein subject to the terms and conditions set forth below.
The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not be applied to these Terms. Any questions relating to these Terms which are not expressly or implicitly settled by the provisions contained in these Terms shall be governed by and construed in accordance with the following:
The United States of America, including all of its territories, and Canada
These Terms (and any further rules, policies or guidelines incorporated by reference therein) shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law. Unless otherwise agreed in writing by the Client and KYG Trade Inc, any dispute arising out of or relating to these Terms, or the breach thereof, shall be governed by the terms set forth in this Section 18.2..
For Clients domiciled in the United States, any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in New York, New York, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in New York, New York. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
We each agree that we shall bring any dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, we each agree that disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
For Clients domiciled in the United Kingdom, all disputes arising out of or in connection with the present Terms, including any question regarding its existence, validity or termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) (the “Arbitration Rules”) by one (1) arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, appointed in accordance with the said Arbitration Rules. The place of the arbitration shall be London (England). The language of the arbitration shall be English. The arbitration shall be commenced by a request for arbitration by the either party (the “Claimant”), delivered to the other party (the “Respondent”). The request for arbitration shall set out the nature of the claim(s) and the relief requested. Except as otherwise specifically limited in these Terms, the arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The existence and content of the arbitral proceedings and any rulings or awards shall be keep confidential by the parties and members of the arbitral tribunal except (i) to the extent that disclosure may be required of a party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all parties, (iii) where needed for the preparation or presentation of a claim or defense in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of this clause, or (v) by order of the arbitral tribunal upon application of a party. The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees, as the arbitral tribunal shall deem reasonable. Any award of the arbitral tribunal shall be final and binding on the parties. Enforcement of any award may be sought in any court of competent jurisdiction.
If any part of this provision is ruled to be unenforceable, then the balance of this provision shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein.
Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
Notwithstanding the foregoing, you and KYG agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.
19. General Provisions
19.1 Relationship of the Parties
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and either KYG, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise.
These Terms are not for the benefit of any third parties.
19.2 Severability
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
19.3 Entire Agreement
These Terms, and any documents or agreements incorporated herein by reference, are the entire agreement between Client and KYG regarding Client’s use of the Services and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between these Terms and those of any Sales Order or other language, the following order of precedence shall govern: (A) first, the applicable Sales Order, and (B) second, these Terms.
19.4 Assignment
Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without KYG’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.
19.5 No Waiver
Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
19.6 Notices
Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery to KYG at 220 Newport Center Dr., Suite 11391, Newport Beach, CA 92660, (b) the second business day after mailing to KYG at 220 Newport Center Dr., Suite 11391, Newport Beach, CA 92660, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email to KYG at PRIVACY@KYG.AI. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services system administrator designated by you.
Last update: November 11, 2025