TERMS AND CONDITIONS
These Terms and Conditions, together with the order form signed by the parties (the “Order Form”) which incorporates these Terms and Conditions (collectively the “Agreement”) are made between Kyckr) and the Customer in respect of the provision by Kyckr of the Services to the Customer, each capitalised term as may additionally be defined in the Order Form.
1. Overview
Kyckr’s Services enables its customers to have access to information, data, documents or third-party content (collectively “Information”) from publicly available global registries and data providers (the “Registries”) for use by the customers for its own business purposes in accordance with the support policy and service levels located at www.kyckr.com/legal.
2. Duration
The term of this Agreement (the “Term”) shall be as stated in the Order Form and shall include any subsequent renewal periods.
3. Access to Kyckr Services
3.1. Kyckr grants to the Customer a personal, non-exclusive, limited, revocable, non-sublicensable and non- transferable right to access and use the Services for the Term subject to the terms of this Agreement.
3.2 The Customer’s affiliates or its third-party service providers are hereby granted the right to access and use the Services solely for the purposes of fulfilling the Customer’s proper right to use the Services pursuant to clause 3.1.
3.3. Where the Customer accesses the Services by:
3.3.1 Kyckr Portal: the Customer will obtain access to the Kyckr Portal via https://app.kyckr.com (the "Kyckr Website"). The Customer shall authorise users including its employees, officers, agents and sub-contractors (“Authorised Users”) by providing them with a secure user-ID and password for the Kyckr Website. Subject to clause 3.2 above, the Customer shall ensure that Authorised Users do not disclose, share or allow their user-ID and password to any party outside of the Customer. The sharing or disclosure of the user-ID and password by any Authorised User will be deemed by Kyckr to constitute a material breach of the terms of this Agreement. The Customer shall ensure that the Authorised Users agree to and abide by any user access agreement provided as part of the sign-in process on the Kyckr Website.
3.3.2. Kyckr API: the Customer shall be provided with secure credentials to access the Kyckr API. Subject to clause 3.2 above, the Customer shall ensure that the credentials are not disclosed, shared or allow any party outside of the Customer to access the Kyckr API. The sharing or disclosure of the credentials will be deemed by Kyckr to constitute a material breach of the terms of this Agreement.
3.4. The Customer shall be responsible for installing any software and/or hardware and making any other arrangements required by it to use the Services, including use of a network or other connection required to access the Services.
4. Use of the Services
4.1. The Customer agrees to: (a) provide such information to Kyckr as reasonably requested as necessary to provide the Services; (b) ensure the Services meet its own requirements; and (c) use the Services lawfully and for lawful purposes only and comply with all relevant laws, rule and regulations in force; and (d) to use the Services for business to business and business purposes only, and that it is not contracting as a “consumer”.
4.2. Subject to the provisions of clause 3, the Customer shall not: (a) copy, modify, harvest or create derivative works of the Services or resell the Services or grant access to any affiliate or a third party; (b) resell to a third party the Information extracted as part of the Services; and (c) use the Services in a way that: (i) circumvents the security measures; or (ii) might have an effect on Kyckr’s systems or websites, (including by introducing software designed to disrupt or damage a computer system or websites) or any other person’s or business’s systems, websites or security.
4.3. The Customer shall inform Kyckr immediately upon becoming aware any breach of Clause 4.2 and shall provide any reasonable assistance required by Kyckr to identify any such third party and to protect Kyckr’s intellectual property rights.
5. Credit, Profile and Case Use
The Customer acknowledges that the credits, profiles or cases outlined in the Order Form are issued for a twelve-month period and automatically expire at the end of such period. In the event that the Customer exhausts all of the credits, profiles or cases outlined in the Order Form, the Customer will be required to purchase further credits, profiles or cases in order to continue using the relevant Services.
6. Warranty and disclaimers
6.1. To the maximum extent permitted by law and except as expressly set forth in these Terms and Conditions, Kyckr expressly disclaims any warranty of any kind relating to the Services, whether express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantability, fitness for a particular purpose or the reasonable use of skill and care. The Services use publicly available Registries and are provided on an “as is” basis and, to the maximum extent permitted by law, without any warranty of any kind.
6.2. Kyckr will use its reasonable endeavours to ensure its systems are free from viruses or other technologically harmful materials. To the maximum extent permitted by law, Kyckr disclaims all liability for any loss or damage caused by any technologically harmful material accessed in a Registry or downloaded in the Information or arising from use of the Services whatsoever.
6.3. Kyckr does not own and has no control with respect to the Information contained in any of the Registries and third-party sources (including information from the Customer), which may be accessed by the Customer through the Services. Kyckr does not warrant the accuracy, completeness and reliability of any such Information. To the maximum extent permitted by law, Kyckr disclaims all liability and responsibility for any error, inaccuracy or incompleteness in the Information.
6.4. Kyckr does not and cannot control the flow of Information to and from the Registries and the performance of internet services provided by third parties. For this reason, Kyckr provides no warranty that use of the Services will be uninterrupted or error free. In the event that Kyckr is unable to access Information from a third party, necessary to deliver the Services, Kyckr will not be liable to the Customer for any interruption in the Services.
6.5 Where the Customer extracts standardised or visualised reports (ie using a single title, form or method to harmonise differing titles, forms or methods from various reports or Registries) it does so on an “as-is” basis, for informational purposes and without any liability to Kyckr. The Customer acknowledges that it receives the original reports and shall not rely upon any standardised or visualised report.
7. Payments and invoicing
7.1. The Customer shall pay for use of the Services in accordance with the Fees set out in the Order Form. Pricing quoted is exclusive of all taxes, duties, levies, fees or other similar charges (including, without limitation, VAT) for which the Customer shall be liable (as applicable).
7.2. Unless specified otherwise, the Customer will be: (a) invoiced in Euros for the Fees outlined in the Order Form; and (b) required to pay all amounts stated on each invoice within fourteen (14) calendar days from the date of receipt of the applicable invoice.
7.3. All invoices will be sent to the Customer’s Billing Email (as stated in the Order Form).
7.4 In the instance that a Registry changes its charges in order to access such Registry, Kyckr may give the Customer fourteen (14) days written of notice of any changes to the Fees.
7.5 Kyckr may, at any time after the first anniversary of the Term and on each anniversary thereafter, increase the Fees in accordance with the UK’s Retail Prices Index.
7.6 Without prejudice to any other right or remedy that it may have, if Customer fails to pay Kyckr any bona fide undisputed sum due under this Agreement on the due date: (i) Kyckr shall be entitled to charge interest on the overdue sum from the due date until payment of the overdue sum (such interest to be calculated on a daily basis at a rate of 4% above the annual base rate of Barclays Bank plc from time to time); and/or (ii) Kyckr may suspend all or part of the Services until payment has been made in full.
8. Confidentiality
8.1. Kyckr and the Customer shall keep secure and secret any Confidential Information which such party has received from the other party. "Confidential Information" shall mean any information, technical, commercial or of any other kind, whether written, oral or in electronic form, except such information which is publicly known or which has come to the public knowledge in any other way than through breach of this secrecy undertaking, or has been: (a) independently developed without access to such party's Confidential Information; (b) rightfully received from a third party; or (c) required to be disclosed by law or by a governmental authority.
8.2. Neither Kyckr nor the Customer shall, even after the expiration of the Term of the Agreement use or disclose to any third parties the Confidential Information except: (a) to those of its employees, officers, agents and sub-contractors required to know such Confidential Information for the purposes of their proper performance of this Agreement; (b) to its auditors or such other third party having a right, duty or obligation to know such Confidential Information; and/or (c) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. In the case of (a) and (b), both parties shall ensure that any third parties have entered into confidentiality obligations on terms at least as favourable as set out in this Clause 8.
8.3. If the Customer is provided with any credentials or any other piece of information as part of Kyckr’s security procedures, it must treat such information as strictly confidential and it must not disclose such Confidential Information to any third party and it must inform Kyckr where it believes that a third party has access to obtained access to such Confidential Information.
8.4 Customers acknowledge that, to the extent that it is relevant, Kyckr shall be entitled to provide details of the Customer’s transactional usage to any third party which introduced the Customer to Kyckr.
9. Data protection
Kyckr and the Customer are each data controllers and shall comply with data privacy laws and regulations, which relate to the protection of individuals with regards to the processing of “Personal Data” (as defined in the General Data Protection Regulation 2016/679 (“GDPR”)) and this includes compliance with the GDPR and any applicable local data protection laws.
10. Intellectual property
10.1. All intellectual property subsisting in, created during, or used in connection with the Services or Information, including any modifications and amendments thereto, provided to the Customer by Kyckr, shall be and remain the sole property of Kyckr or its licensors (and shall be Kyckr’s “Intellectual Property”). The Customer shall not, without Kyckr’s prior written consent or the relevant owner, use or adopt any name, trade name, trading style or commercial designation used by us or the relevant owner, or do or omit anything to infringe on any intellectual property right relating to any service or Information supplied by us or the relevant owner. The Customer agrees to notify Kyckr immediately if it becomes aware of any unauthorised use of Kyckr’s Intellectual Property.
10.2. In the event that new intellectual property, inventions, designs or processes evolve in the performance of or as a result of Services, including where modifications recommended by the Customer are incorporated by Kyckr into the Services, the Customer acknowledges that the same shall be Kyckr’s Intellectual Property unless otherwise agreed in writing.
10.3. Kyckr shall retain all Intellectual Property rights used by the Customer in relation to the Services.
11. Registry specific terms and conditions
11.1. Where required to by any Registry, Kyckr shall notify the Customer of any additional terms and conditions relating to the Registries.
11.2 The Customer agrees and acknowledges that:
11.2.1 the Information is based upon information provided to the Registries by third parties;
11.2.2 the Registries do not verify the accuracy, currency reliability, completeness of the Information and, in a similar manner as Kyckr, the Registry makes no representation or warranty as to the accuracy currency or reliability of any Information; and
11.2.3 the Registries will have no liability to any persons for inaccuracy, omission, defect or error in any Information.
12. Liability
12.1. Kyckr’s liability for any of the following is not excluded or limited by this Agreement:
12.1.1 death or personal injury caused by its negligence;
12.1.2 fraud or fraudulent misrepresentations; or
12.1.3 any other liability which cannot be legally excluded or limited.
12.2. In no event shall Kyckr be liable for special, incidental, consequential, indirect or punitive damages including, but not limited to, loss of revenue or profit, loss of data, loss of use of any property or costs of substitute performance, equipment or service.
12.3. Subject to Clauses 12.1 and 12.2, Kyckr’s liability for any claim, loss, expense, or damage arising under this Agreement shall in no event exceed the Fees Services paid in respect of the six (6) month period immediately preceding the date on which the event giving rise to such the claim.
12.4. The Customer shall be responsible for all actions or omissions of its users (including employees, officers and agents of the Customer), and any breaches of this Agreement and any user agreement, as if they were the Customer’s own acts, omissions or breaches.
12.5. The provisions of this Clause 12 shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise.
13. Termination
13.1. Either party may terminate this Agreement immediately by written notice, if (a) the other party has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or enters into any form of insolvency, or enters into liquidation (except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation), or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or assets or any part thereof; or (b) the other party ceases or threatens to cease to carry on business; or (c) the other party commits a material breach of this agreement or (if such breach is remediable) fails to remedy that breach within thirty (30) calendar days of receiving written notice requiring it to do so.
13.2. Without prejudice to the remainder of the Agreement or any remedies available at law or in equity, Kyckr may immediately suspend or terminate the Customer’s use of the Services, without liability or refund, if the Customer fails to make a payment due under this Agreement and has not remedied such a breach within thirty (30) calendar days of written notice to the Customer’s Billing Email, or if any payment that the Customer owes to Kyckr is declined, rejected or reversed for any reason whatsoever and has not remedied such a breach within thirty (30) calendar days of written notice to the Customer’s Billing Email.
13.3. Save as expressly stated elsewhere in these Terms and Conditions, termination of the Agreement (or of any element of it) shall not affect any rights, obligations or liabilities of either party which have accrued before termination (including, without limitation, payment obligations) or which are expressly stated to continue to have effect beyond termination.
13.4. Upon termination of this Agreement: (a) Kyckr shall invoice the Customer for all amounts due and this shall be payable within thirty (30) calendar days from receipt of the invoice; (b) each party shall return to the other party any property of the other party that it has in its possession or control including any Confidential Information belonging to the other party; (c) the Customer's access to the Services will cease and all rights granted to the Customer in relation to the Services shall cease.
14. General
14.1. Entire agreement. This Agreement and all documents referred herein are the entire agreement between Kyckr and the Customer regarding the Customer’s use of Services and supersedes all prior agreements, proposals, communications, or representations, whether oral or written, concerning its subject matter.
14.2. Contract variation. No variation of this Agreement shall be effective unless it is in writing and signed by both parties.
14.3. Force majeure. Except for any payments due hereunder, neither party shall be responsible or liable for any failure to perform its obligations due to causes beyond its reasonable control, including but not limited to acts of God, war, riots, terrorist acts, embargoes, acts of civil or military authorities, fires, floods, earthquakes, accidents, strikes or other form of industrial actions, failure of any communications services or utility service for the duration of any such circumstances or cause.
14.4. Assignment. Neither party may assign, charge, transfer or deal in any other manner with the Terms and Conditions in whole or in part without the prior written consent of the other party.
14.5. Severability. If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 14.5 shall not affect the validity and enforceability of the rest of this Agreement.
14.6. Third-party rights. Nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement.
14.7. Independent contractors. The parties are independent contractors. Nothing in these Terms and Conditions is intended to, or shall be deemed to, establish any partnership between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other.
14.8. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Any waiver, to be effective, must be in writing and signed on behalf of the party who is waiving the breach or provision.
14.9. Notice. A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at its registered physical address and a copy shall also be sent by email to the party’s respective Notices Email (as outlined in the Order Form) or at any other address or email address as otherwise notified in writing by the other party.
14.10. Misrepresentation. Each party agrees that it shall have no remedies in respect of any statement, representation, warranty or understanding (whether made innocently or negligently) that is not expressly set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation based on any statement other than as set out in these Terms and Conditions.
14.11 Conflict. In the event of a conflict between the Order Form and the Terms and Conditions, the terms of the Order Form shall prevail to the extent of such conflict.
14.12. Governing law and jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales and the English Courts shall have exclusive jurisdiction over any dispute or claim that arises out of or in connection with the Terms and Conditions.
