KYCKR RESELLER TERMS AND CONDITIONS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Annex: an annex to these Kyckr Reseller Terms and Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday when banks are closed for business in the UK.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Calendar Day: every day in the calendar including Saturday, Sunday and public holidays in the UK.
Commencement Date: the date set out in the Schedule (or otherwise the date of signature of this Agreement).
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or otherwise identified as Confidential Information.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the Reseller, and controls, controlled and the expression change of control shall be construed accordingly.
Customer: the recipient of the Kyckr Services who enters into the minimum terms set out in the EUA with the Reseller.
End User Agreement (“EUA”): the EUA in the form set out in Annex 1.
Fees: the fees set out in Schedule 2 of the Schedule and as referred to in Clause 6.
First Level Support: the Customer’s first level support provided by the Reseller as set out in the Reseller Support Policy at https://www.kyckr.com/legal/reseller-support-policy.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, trade-marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Kyckr Services: the Services set out in Schedule 1.
Kyckr Application Programming Interface (“Kyckr API”): the conduit through which the Kyckr Services are provided as listed in the Schedule.
Law or Legislation: any statute, statutory provision or subordinate legislation or any regulations or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party.
Registries: means the global public registries and data providers as defined on the Signature Page.
Reseller Support Policy: the notice found at www.kyckr.com/legal and outlines the requirements of the First Level Support and the Second Level Support. The Reseller Support Policy may be amended from time to time.
Service Levels: as set out in the service levels located at www.kyckr.com/legal.
Schedule: the attached schedules to the Signature Page.
Second Level Support: the Customer’s second level support provided by Kyckr in conjunction with the Reseller and as set out in the Reseller Support Policy at https://www.kyckr.com/legal/reseller-support-policy.
Signature Page: the attached first page to this Agreement, duly signed by both parties.
Term: the duration of the Agreement as set out in the Schedule and shall include any agreed renewal periods.
Territory: the geographical area described in the Schedule.
2. APPOINTMENT
2.1 Kyckr hereby appoints the Reseller as its non-exclusive distributor of the Kyckr Services in the Territory on the terms of this Agreement.
2.2. During the term of this Agreement, the Reseller undertakes not to:
(a) purchase the Kyckr Services from any person other than Kyckr; or
(b) market or distribute the Kyckr Services other than as expressly agreed in the Schedule.
(c) share or disclose credentials of a Customer with another customer and not to 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.
2.3 The Reseller shall be entitled to describe itself as an “Authorised Reseller” of Kyckr Services but shall not represent itself as an agent of Kyckr for any purpose, nor pledge Kyckr’s credit or give any condition or warranty or make any representation on Kyckr’s behalf or commit Kyckr to any contracts. Further, the Reseller shall not without Kyckr’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Kyckr’s which are inconsistent with those contained in the promotional material supplied by Kyckr (including, without limitation, the EUA) or otherwise incur any liability on behalf of Kyckr howsoever arising.
2.4 The Reseller shall not sell the Kyckr Services through a sales agent or to a sub-distributor or Reseller without the prior express written permission of Kyckr. Where Kyckr agrees to any such appointment, the Reseller shall ensure that it enters into a written contract with such sales agent, sub-distributor or Reseller on terms which provide at least the same level of protection to Kyckr as set out in this Agreement. The Reseller shall be liable for the acts or omissions of such third parties under this clause 2.4, as if they were the acts or omissions of the Reseller.
2.5 The Reseller’s appointment under this Clause 2 only grants to the Reseller a licence to distribute the Kyckr Services subject to the terms hereof, and does not transfer any right, title or interest to any such Kyckr Services to the Reseller or its Customers. Use of the terms “sell”, “license”, “purchase”, “licence fees” “fee” and “price” will be interpreted in accordance with this clause.
3. RESELLER’S UNDERTAKINGS
3.1 The Reseller undertakes and agrees with Kyckr to:
(a) use its best commercial endeavours to promote the distribution and sale of the Kyckr Services;
(b) ensure that the Customer accept and executes the terms and conditions of the EUA (in addition to or as part of any terms and conditions of the Reseller) before benefiting from the use of the Kyckr Services;
(c) refrain from materially amending or varying the substance in the terms of the EUA;
(d) employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Reseller’s obligations under this Agreement;
(e) provide appropriate security for the Kyckr Services, all at its own cost;
(f) during the term of this Agreement provide to Customers support service in respect of the Kyckr Services on terms set out in the Support Level Services Notice, including, without limitation, the provision of First Level Support, necessary and useful activation assistance and consultation on the use of Kyckr API; timely responses to Customers’ general questions concerning use of the Kyckr Services; and assistance to customers in the diagnosis and correction of problems encountered in using the Kyckr Services;
(g) inform Kyckr within 30 days of any changes in the Reseller business which might affect the performance of the Reseller’s duties in this Agreement.
4. SUPPLY OF THE KYCKR SERVICES
4.1 Kyckr shall make the Kyckr Services available to the Reseller on the Commencement Date.
4.2 Kyckr is entitled upon giving reasonable written notice to the Reseller to vary the Schedule to exclude from this Agreement one or more functionality elements in the Kyckr Services as it thinks fit if for any reason the production of such functionality elements within Kyckr Services has been permanently discontinued.
4.3 Kyckr is entitled to make changes to the functionality of the Kyckr Services which does not adversely affect the Kyckr Services as provided to the Reseller and shall give written notice of such changes to the Reseller as soon as reasonably practicable.
4.4 Where required to by any Registry, Kyckr shall notify the Customer of any additional terms and conditions relating to the Registries.
4.5 The Customer agrees and acknowledges that:
(a) the Information is based upon information provided to the Registries by third parties;
(b) 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
(c) the Registries will have no liability to any persons for inaccuracy, omission, defect or error in any Information.
5. KYCKR’S UNDERTAKINGS
5.1 Kyckr undertakes:
(a) to provide such information and support as may be reasonably requested by the Reseller to enable it properly and efficiently to discharge its duties under this Agreement; and
(b) to approve or reject any promotional information or material submitted by the Reseller within fourteen (14) Business Days of receipt.
6. FEEES AND PAYMENT
6.1 The Fees to be paid by the Reseller to Kyckr for the Kyckr Services are shown in the Schedule.
6.2 In the instance that the cost for access to one or more Registries that Kyckr uses in order to provide the Kyckr Services increases, Kyckr shall give the Reseller fourteen (14) Business Days’ written notice of any such changes in prices and therefore Fees.
6.3 Notwithstanding clause 6.2, Kyckr shall have the right to vary its Fees by providing ninety (90) days’ written notice of any such changes to the Reseller prior to the expiry of the anniversary of the relevant Term.
6.4 Any and all expenses, costs and charges incurred by the Reseller in the performance of its obligations under this Agreement shall be paid by the Reseller unless Kyckr has expressly agreed beforehand in writing to pay such expenses, costs and charges.
6.5 Kyckr will invoice the Reseller monthly in respect of the Fees due for the month concerned.
6.6 The Reseller shall pay the full amount invoiced to it by Kyckr in within thirty (30) Calendar Days from the date of invoice in full without any set-off, counterclaim, deduction or withholding.
6.7 The Reseller shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the Kyckr Services.
6.8 Where the Reseller’s customer has ceased trading or is in default of making payment to the Reseller, the Reseller shall still be liable to pay Fees to Kyckr.
6.9 If the Reseller fails to make any payment due to Kyckr under this Agreement by the due date for payment, then, without limiting Kyckr’s remedies under Clause 15, the Reseller shall pay interest on the overdue amount at the rate of 2% per annum above Barclay’s Bank base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Reseller shall pay the interest together with the overdue amount.
7. ADVERTISING AND PROMOTION
7.1 The Reseller shall:
(d) observe all reasonable directions and instructions given to it by Kyckr in relation to the promotion and advertisement of the Kyckr Services to the extent that such promotions or advertisements refer to Kyckr Services and the Reseller shall not make any written statement as to the quality or creation of Kyckr Services without the prior written approval of Kyckr;
(e) conduct its business in a manner that reflects favourably at all times on Kyckr and the good name, goodwill and reputation of Kyckr and not enter into any contract or engage in any practice that is or may be detrimental to the interests of Kyckr; and
(f) avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Kyckr, the Kyckr Services or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to Kyckr and the Kyckr Services.
7.2 Kyckr and the Reseller shall issue a joint press release which illustrates their relationship (with the form and publishing details to be agreed between the parties).
7.3 Kyckr (and the Reseller) shall also be entitled to independently announce or market the existence of this Agreement on its websites, blogs, social media channels and/or news outlets.
7.4 Kyckr (and the Reseller) may use each other’s logo on their websites for the sole purpose of demonstrating this Agreement and provided that it does not grant either party a license to use the other party’s logo (or trademark) for any other reason.
8. COMPLIANCE WITH LAWS AND REGULATIONS
8.1 The Reseller will use its reasonable endeavours to keep Kyckr informed of relevant Legislation that may affect the sale of the Kyckr Services which is in force in the Territory from time to time.
8.2 Kyckr warrants to the Reseller that Kyckr Services do not infringe the Legislation in force at the date of this Agreement.
9. ANTI-BRIBERY AND CORRUPTION
9.1 The Reseller shall:
(a) comply with all applicable Legislation and sanctions relating to anti-bribery and anti-corruption Laws;
(b) comply with Kyckr’s Anti-Bribery & Corruption Policy (“Policy”) as published on Kyckr’s website;
(c) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures under the anti-bribery Laws, to ensure compliance with the Policy and will enforce them where appropriate; and
(d) report to Kyckr any request or demand for any undue financial or other advantage of any kind received by the Reseller in connection with the performance of this Agreement.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Unless otherwise agreed between the parties, all Intellectual Property Rights in and to the Kyckr Services belong, and shall belong, to Kyckr.
10.2 The Reseller shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of Kyckr and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
10.3 Kyckr grants to the Reseller a non-exclusive, revocable, personal licence (subject to the terms and conditions of this Agreement and during its term and solely for the purposes of performing the Reseller’s obligations under this Agreement) to:
(a) make and use Kyckr Services as may be reasonably required for the purposes of demonstrating, marketing and selling the Kyckr Services to Customers (in accordance with Clause 7);
(b) make a further copy of the Kyckr Services (together with a further copy to be used solely for back-up purposes) for combining with the Reseller Product(s) and offering to each of the Reseller’s Customers who have agreed to the Reseller EUA; and
(c) use Kyckr’s logo on or in relation to the Kyckr Services for the purpose of the promotion, advertisement and sale of the Kyckr Services (in accordance with Clause 7).
10.5 The Reseller shall not:
(a) copy the Kyckr Services or any part of any of them except to the extent and for the purposes expressly permitted by this Agreement; and/or
(b) modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the Kyckr Services except and only to the extent that it is expressly required by applicable law. The Reseller is granted no rights under this Agreement except as expressly stated and Kyckr expressly reserves all Intellectual Property Rights and its other rights in and to the Kyckr.
10.6 Other than access to the Kyckr API and the Kyckr Services expressly granted under this Agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this Agreement, the Reseller shall have no rights in respect of any the Kyckr Services or its associated goodwill.
10.8 The Reseller shall give notice in writing to Kyckr (and provide all reasonable assistance) in the event that it becomes aware of:
(a) any infringement or suspected infringement of the Intellectual Property Rights in or relating to the Kyckr Services; and
(b) any claim that any Kyckr Services or the creation, use, sale or other disposal of any Kyckr Services infringes the rights of any third party,
Kyckr shall, in its absolute discretion, determine what action if any shall be taken in respect of the matter.
11. CONFIDENTIALITY
11.1 Each party may have access to Confidential Information of the other party under this Agreement. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known through no act or omission of the receiving party; or
(b) was in the other party’s lawful possession prior to the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to Clause 11.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 This Clause 11 shall survive termination of this Agreement for any reason.
12. DATA PROTECTION
12.1 Kyckr and the Reseller are each data controllers and shall ensure to 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 (the “GDPR”)) or the UK Data Protection Act 2018 and this includes compliance with the GDPR or UK GDPR and any applicable local data privacy laws.
13. WARRANTIES
13.1 Each party represents, warrants and undertakes that:
(a) it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights referred to in this Agreement and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it; and
(b) without affecting its other obligations under this Agreement, it shall comply with all applicable Legislation in the performance of its obligations under this Agreement.
13.2 Kyckr warrants to the Reseller that Kyckr Services supplied by it under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the applicable part(s) of the documentation.
14. LIMITATION OF LIABILITY
14.1 Disclaimer. Except as expressly provided for in this agreement, there are no express warranties made by either party, and all implied warranties and covenants (other than the duty of good faith, but expressly including the implied warranties of merchantability and fitness for a particular purpose) are hereby disclaimed. Further, the parties agree that they have not relied on any representations not set forth in this Agreement.
14.2 Nothing in this Agreement excludes the liability of Kyckr:
(a) for death or personal injury caused by Kyckr’ negligence; or
(b) for fraud or fraudulent misrepresentation.
14.3 Subject to Clause 14.2 Kyckr shall not in any circumstances be liable, whether in tort (including for breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(a) loss of profits; or
(b) loss of business; or
(c) depletion of goodwill or similar losses; or
(d) loss of anticipated savings; or
(e) loss of goods; or
(f) loss of use; or
(g) loss or corruption of data or information; or
(h) loss arising from the Reseller amending the terms of the EUA without Kyckr’s prior permission in writing; or
(i) any special, indirect, incidental, punitive, exemplary consequential or pure economic loss, costs, damages, charges or expenses.
14.4 Kyckr’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the amount actually paid by the Reseller to Kyckr under this Agreement in the twelve (12) months preceding the date on which the claim arose.
14.5 In the event of any breach of Kyckr’s warranty in Clause 13.2 the Reseller’s sole remedy and Kyckr’s only obligation and liability to the Reseller shall be for Kyckr to:
(a) replace the Kyckr Services in question; or
(b) at Kyckr’s option, repay any price paid for the Kyckr Services by the Reseller.
15. TERM AND TERMINATION
15.1 This Agreement shall commence on the Commencement Date. Unless terminated earlier in accordance with Clause 15.2, Clause 15.3 or Clause 15.4, this Agreement shall be for the Term as stated in the Schedule.
15.2 Kyckr may terminate this Agreement at any time during the Term for any reason upon giving three (3) months’ written notice to the Reseller.
15.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than five (5) Business Days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten (10) Business Days after being notified in writing to do so; or
(c) the other party becomes insolvent or subject to any proceeding under the federal bankruptcy laws or other similar laws for the protection of creditors; or
(d) 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
(e) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.4 Without prejudice to any other rights or remedies to which Kyckr may be entitled, Kyckr may terminate the Agreement without liability to the Reseller if:
(a) the Reseller commits a breach of its obligation in Clause 8;
(b) there is a change of control of the Reseller; or
(c) the Reseller purports to assign any of its rights or obligations under this Agreement.
15.5 The Reseller is required to provide 60 days prior written notice to terminate this Agreement such notice to expire on the anniversary of the relevant Term otherwise this Agreement shall automatically renew for an further 12 month periods until so terminated.
16. EFFECTS OF TERMINATION
16.1 Upon termination or expiry of this Agreement for any reason:
(a) without affecting its obligation under Clause 12.3(f), the Reseller shall (at its sole cost) return (or at Kyckr’ option, destroy) all media including all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers (subject to Clause 16.1(b)) on which information concerning Kyckr Services is held and recorded;
(b) the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced; and
(c) subject to the foregoing provisions of this Clause 16.1, all rights of the Reseller under this Agreement shall terminate.
16.2 Where the Reseller has entered into a EUA with a Customer and the Reseller has terminated this Agreement with Kyckr, the Reseller shall be responsible for sourcing an alternative solution for its Customers in order for the Reseller to fulfil its contractual obligations with the Customer. Kyckr is not required to provide any assistance once this Agreement has been terminated.
16.3 The termination or expiry of this Agreement shall not of itself in any way give rise to any liability on the part of Kyckr to pay any compensation or indemnity payment to the Reseller (whether or not for the purposes of the Commercial Agents (Council Directive) Regulations 1993) including for loss of profits or goodwill, to reimburse the Reseller for any costs relating to or resulting from such termination or expiry, or for any other loss or damage. The parties expressly agree that no indemnity or compensation payment shall apply at the termination or expiry of this Agreement.
17. FORCE MAJEURE
Neither party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Reseller or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any Law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for thirty (30) Calendar Days, the party not affected may terminate this Agreement by giving five (5) Calendar Day’s written notice to the other party.
18. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. SEVERANCE
19.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
19.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. ENTIRE AGREEMENT
20.1 This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes all previous Agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
20.4 Nothing in this Clause 20 shall limit or exclude any liability for fraud.
21. VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22. ASSIGNMENT
22.1 The Reseller shall not, without the prior written consent of Kyckr, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.2 Kyckr may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
23. NO PARTNERSHIP OR AGENCY
23.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided in Clause 2.
23.2 Reseller shall not: (i) represent itself as an agent of Kyckr for any purpose; (ii) pledge Kyckr's credit; (iii) give any condition or warranty on Kyckr’s behalf; (iv) make any representation on Kyckr’s behalf; (v) commit Kyckr to any contracts; (vi) otherwise incur any liability for or on behalf of Kyckr; or (vii) sell, distribute, otherwise make available, advertise, market, support, host or implement the Kyckr Services, including, to distributors, Resellers or end-users, except as expressly permitted by this Agreement.
23.3 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24. THIRD PARTY RIGHTS
No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
25. RIGHTS AND REMEDIES
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
26. NOTICES
26.1 Any formal notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
26.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
26.3 This Clause 26 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall include e-mail.
27 NON-SOLICITATION
Each party agrees not to directly solicit the employment of the other party’s employees, contractors or agents involved in performing under this Agreement, during the Term of this Agreement and for a period of six (6) months after the termination of this Agreement. Notwithstanding the foregoing, neither party will be deemed to have violated the foregoing restriction by generally advertising, posting employment listings or requesting applications, for a particular job position. Either party’s personnel will have every right to respond to the advertisements and job listing of the other party, and nothing herein will be construed to prohibit or restrict either party from employing any personnel of the other party who have responded to such advertisements or job listings or otherwise voluntarily solicited or sought employment with that party.
28. DUE DILIGENCE & AUDIT RIGHTS.
28.1 Each party (the “audited party”) agrees to allow for reasonable audits by the other party (or other Party’s designated auditor) to demonstrate the audited party’s compliance with its obligations under this Agreement (“Audits”).
28.2 The audited party will inform the other party if, in its opinion, any of the other party’s instructions relating to the Audit violate applicable Law. The auditing party may use a third party to perform the Audit on its behalf, provided the third party is a qualified auditor and executes a confidentially agreement acceptable to the audited party before the Audit. Such Audit shall be conducted using an appropriate and accepted control standard or framework and audit procedure, which must be approved by the other party. The audited party must provide the other party with any Audit reports or findings generated in connection with any Audit at no charge, unless prohibited by law.
29. CONFLICT
In the event of a conflict between the Signature Page and Schedules and the Terms and Conditions, the terms of the Signature Page and then the Schedules shall prevail to the extent of such conflict.
30 GOVERNING LAW
30.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales.
30.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement, its subject matter or its formation (including non-contractual disputes or claims).
ANNEX 1
EUA
Minimum terms to be inserted into the Resellers agreement with the Reseller’s Customer.
1. Definitions
Agreement: this End User Agreement.
Fees: the fees due for the use of the services.
Kyckr Services: Kyckr’s API which enables the Customer to access and extract information, data or documents or third-party content (collectively “Information”) from publicly available global registries and service providers (“Registries”) for the customer’s business purposes.
Term: [Reseller to enter]
2. Kyckr Services
2.1 Subject to and in consideration of payment of the Fees by the Customer to the Reseller, the Reseller hereby grants to the Customer access to Kyckr’s Services during the Term of this Agreement.
2.2 Access to Kyckr’s Services are subject to the following restrictions:
2.2.1 Kyckr’s Services are personal and for the sole use by the Customer and its employees or contractors who are authorised users for the Customer’s business purposes;
2.2.2 the Customer shall not access and shall not attempt to access the source code relating to the Kyckr Services or access all or any part of the Kyckr Services and related documentation in order to build a product or service which competes with the Kyckr Services and any documentation provided;
2.2.3 The Customer shall not resell the Kyckr Services or any Information derived from the Kyckr Services;
2.2.4 The Customer shall not modify, alter or in any way interfere with the Software or merge the Kyckr Services with other data, programs or systems; and
2.3 The Customer agrees not to use the Kyckr Services, or any documentation provided save in accordance with the terms and conditions of this Agreement.
2.4 The Customer acknowledges and agrees that none of the acts which are prohibited by the provisions of this Agreement (including, without limitation, the prohibitions on copying or adapting the Kyckr Services or any part for the purpose of correcting errors in the Kyckr Services) are necessary for the purposes of the use of the Kyckr Services by the Customer in accordance with its intended purposes of this Agreement.
2.5 Neither Reseller or its licensor owns and has 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 Kyckr’s Services. Neither the Reseller or its licensor warrant the accuracy, completeness and reliability of any such Information. To the maximum extent permitted by law, the Reseller and its licensor disclaims all liability and responsibility for any error, inaccuracy or incompleteness in the Information.
2.6 Neither the Reseller nor its licensor controls the flow of Information to and from the Registries and the performance of internet services provided by third parties. For this reason, neither the Reseller nor its licensor provides any warranty that use of the Kyckr Services will be uninterrupted or error free. In the event that Reseller is unable to access Information from a third party, necessary to deliver the Kyckr Services, neither the Reseller or its licensor will be liable to the Customer for any interruption in the Kyckr Services.
2.5 The Customer acknowledges and understands that the Kyckr Services are provided on an “as is” basis and, to the maximum extent permitted by law, without any warranty of any kind. No warranty is provided that use of the Kyckr Services will be uninterrupted or error free.
2. Since the Kyckr Services provides access to the Information, neither the Reseller nor its licensor warrant the accuracy, completeness and reliability of any such third-party content howsoever provided or caused.
3. Data Protection
3.1. Customer and the Reseller 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 (the “GDPR”)) and the Data Protection Act 2018 (“UK GDPR”) and this includes compliance with the GDPR, UK GDPR and any applicable local data privacy laws (the “Data Protection Legislation”).
4. Customer Indemnity
4.1 The Customer agrees to fully indemnify and keep the Reseller and its licensors indemnified against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including but not limited to legal fees) whatsoever incurred by Reseller or its third party providers or licensors (and recharged to Kyckr) arising out of any of the following:
4.1.1 The Customer’s breach of this Agreement or its negligence, or other act, omission or default in relation to its use of the Information;
4.1.2 The Customer's misuse of the Kyckr Services; or
4.1.3 The Customer infringing third party intellectual property rights.
5. Reseller Liability
5.1 The Reseller’s aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the amount actually paid by the Customer to the Reseller under this Agreement in the twelve (12) months preceding the date on which the claim arose.
6. Term and Termination
6.1 The Agreement shall continue [Reseller to enter]
6.2 This Agreement may terminate automatically where either party is in breach of its use of the Kyckr Services hereunder.
7. Rights of Third Parties
No one other than a party to this Agreement shall have any right to enforce any of its terms other than the parties hereto. The rights of the Parties to rescind or vary this agreement are not subject to the consent of any other person other than the parties to this Agreement.
