Last updated 14 July 2020
These Terms and Conditions, together with any documents referred to herein apply between Kyckr Ireland Limited (registered number: 436024) a company whose registered office is at Arc Labs Research Centre, WIT West Campus, Carriganore, Waterford (“kyckr”“us” “our” or “we”) and you (the “Customer” or “you”) in respect of the provision by Kyckr of the Services (as defined below) to the Customer. The only exception to this is if Kyckr and the Customer have entered into a bespoke agreement for Kyckr’s Services, in which case this bespoke agreement shall apply instead.
1.1. Kyckr is a distributor of information services including the provision of reports, searches, data and software service (the “Services”) and access to our Services via https://app.kyckr.com (“Kyckr Website”). You may purchase our Services through the Kyckr Website. The Services includes without limitation third party data, which is made available to you via the Kyckr Website (the “Information”).
1.2. Kyckr’s Privacy Notice, which is updated from time to time, and copies of which can be found at https://www.kyckr.com/privacy-notice/ (“Privacy Notice”), sets out the terms on which Kyckr processes any personal data it collects from the Customer or that the Customer provides to Kyckr.
2. Access to Kyckr Services
2.1. Kyckr grants to the Customer, personal a non-exclusive, limited, revocable, non-sublicensable and non- transferable right to access and use the Services for internal business use only, subject to these Terms and Conditions.
2.2. 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 Kyckr’s Websites. 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 these Terms and Conditions.
2.3. The Customer shall be responsible for installing any software and/or hardware and making any other arrangements required to use the Services, including use of a network or other connection required to access our Services.
2.4. The Customer shall ensure that the Authorised Users agree to and abide by Kyckr’s User Agreement as part of the sign-in process to the Kyckr Website.
3. Use of the Services
3.1. The Customer agrees to do the following in connection with the Services: (a) provide such information to Kyckr as we request and which we consider necessary for providing 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”.
3.2. The Customer shall not: (a) copy, modify, harvest or create derivative works of the Services or any information contained therein provided by us to you for resale or for access to any affiliate or a third party; (b) resell or in any way redistribute or provide to a third party the Information supplied to you; (c) alter, delete, replace, amend, change, deface, obscure, remove, conceal or interfere with the face and contents of the Information, our Intellectual Property (as explained in clause 10) and any other marking on the Information. For the avoidance of doubt, use of the Information for the purpose of compiling internal know-your client reports or databases shall not constitute an alteration of information; and (d) use the Services in a way that circumvents the security measures or that might have an effect on our 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; (e) use the Services to send any unsolicited or unauthorised advertising or promotional material or other form of solicitation (spam).
3.3 The Customer shall inform Kyckr immediately upon becoming aware any breach of clause 3.2 and shall provide any assistance required by us to identify any such third party and to protect our or our licensors’ intellectual property rights.
4. Acceptable use
4.1. The Customer understands that it and its Authorised Users must comply with these Terms and Conditions and User Agreement.
4.2. The Customer acknowledges that it may be able to make a limited number of free searches on the Kyckr Website, after which the Kyckr system will automatically require payment for continued search usage functionality.
5. Warranty and disclaimers
5.1. 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. Services are provided on an“as is” basis and, to the maximum extent permitted by law, without any warranty of any kind.
5.2 Kyckr will make reasonable commercial efforts to ensure that its websites (including the Kyckr Website) and its systems are free from virus or other technologically harmful material that may infect Customer’s computer equipment or systems due to the Customer’s downloading of the Information or use of the Services. To the maximum extent permitted by law, Kyckr disclaims all liability for any loss or damage caused by any technologically harmful material accessed or downloaded on the Kyckr Website in the Information or arising from use of the Services or from downloading the Information.
5.3. Since Kyckr receives Information from various company registries and third-party sources (including Information from the Customer), Kyckr does not warrant the accuracy, completeness and reliability of third party content. Kyckr will make reasonable commercial efforts to ensure Information accessible through the Services is up to date and complete. To the maximum extent permitted by law, Kyckr disclaims all liability for any error, inaccuracy or incompleteness in Information supplied to you by us or a third party.
5.4. Kyckr does not and cannot control the flow of information to and from the Kyckr Website 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 you the Customer for any interruption in the Services.
6.1 The Customer shall pay for use of the Services in accordance with the charges set out on Kyckr’s Websites. Kyckr reserves the right to change the pricing for its Services at any time. 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 (where applicable).
7.1. Kyckr and the Customer shall keep secure and secret any Confidential Information which such party has received from the other. “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.
7.2 Neither Kyckr nor the Customer shall, even after the expiration of these Terms and Conditions 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 these Terms and Conditions; (b) to its auditors or such other third party having a right, duty or obligation to know such Confidential Information which disclosure shall only be made with the prior written consent of the disclosing party; or (c) to use the disclosing party’s Confidential Information solely in connection with these Terms and Conditions and not for its own benefit or the benefit of any third party, in each case provided that such third parties have entered into confidentiality arrangements on terms at least as favourable as set out in this clause 6.
7.3. If you are provided with a secure user-ID, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third-party and you must let us know if you believe that a third party has access to obtained access to it.
8. Data protection
8.1. Kyckr and the Customer 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 this includes compliance with the GDPR and any applicable local data privacy laws (the “Data Protection Legislation”).
9.1. Kyckr’s liability for any of the following is not excluded or limited by these Terms and Conditions:
9.1.1 death or personal injury caused by its negligence or the negligence of its employees, agents or sub-contractors; or
9.1.2 fraud or fraudulent misrepresentations; or
9.1.3 any other liability which cannot be legally excluded or limited.
9.2. 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.
9.3. Subject to clauses 9.1. and 9.2., Kyckr’s liability for any claim, loss, expense, or damage arising under these Terms shall in no event exceed the total price paid for six (6) months’ use of services under these Terms in respect of the six (6) month period immediately preceding the date on which the event giving rise to the claim took place.
9.4. The Customer shall be responsible for all actions or omissions of the Authorised Users, and any breaches of these Terms and Conditions and the User Agreement, as if they were the Customer’s acts, omissions or breaches.
9.5. The provisions of this clause shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise.
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 our 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 our 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 by us.
10.3. Kyckr shall retain all Intellectual Property rights over our sites used by you in relation to the Services.
11. Publicity and marketing
11.1. If requested by Kyckr, the Customer agrees to conduct and permit:
11.1.1. a joint press release and/or the production of a case study which illustrates the Services provided by Kyckr to the Customer (with the form and publishing details to be agreed between the Parties);
11.1.2. publicise the existence of this agreement on Kyckr’s Websites, blogs, social media channels and/or through news outlets.
11.1.3. to allow Kyckr use the Customer’s logo and/or trademark(s) on Kyckr’s Websites for the sole purpose of demonstrating this agreement, provided that this does not grant Kyckr a licence to use the Customer’s logo and/or trademark for any other reason.
12.1 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 and (if such breach is remediable) fails to remedy that breach within thirty (30) calendar days of receiving written notice requiring it to do so.
12.2. The Terms and Conditions may be terminated by either party at any time upon giving no less than thirty (30) calendar days’ prior written notice of termination. Where the Customer gives notice to terminate, Kyckr shall not be required to provide a refund for any amount paid in advance.
12.3. Without prejudice to the remainder of the Terms and Conditions 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 the Terms and Conditions or if any payment that the Customer owes to Kyckr is declined, rejected or reversed for any reason whatsoever.
12.4. Save as expressly stated elsewhere in these Terms and Conditions, termination of these Terms and Conditions (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.
13.1. Entire agreement. These Terms and Conditions are the entire agreement between Kyckr and the Customer regarding the Customer’s use of Services and Information and supersedes all prior agreements, proposals, communications, or representations, whether oral or written, concerning its subject matter.
13.2. Contract variation. Kyckr reserves the right to update and vary these Terms and Conditions or to change, suspend or discontinue the Services (or any part thereof) at any time.
In the case of non-material changes, Kyckr shall use reasonable efforts to give notice of any such modifications via the Kyckr Website by posting in advance a “Contract Change Notification” describing the changes and the date that they will come into effect. In the event of any material modification of the Terms and Conditions or Services, Kyckr shall send a Contract Change Notification to the Customer by email and the Customer shall have the right, within ten (10) calendar days after the date of the receipt of the Contract Change Notification, to terminate these Terms and Conditions by giving written notice to Kyckr. Continued use of the Services after any such notice period shall constitute acceptance by the Customer of the changes.
13.3. 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.
13.4. Assignment. Neither party may assign, charge, transfer or deal in any other manner with the Terms in whole or in part without the prior written consent of the other party.
13.5. 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 shall not affect the validity and enforceability of the rest of these Terms and Conditions.
13.6. Third-party rights. Nothing in these Terms and Conditions shall create or confer any rights or other benefits in favour of any person other than the parties to these Terms and Conditions.
13.7. 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.
13.8. Waiver. No failure or delay by either party in exercising any right under these Terms and Conditions 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.
13.9 Notice. A notice given to a party under or in connection with these Terms and Conditions shall be in writing and sent to the party at the contact address given in these Terms and Conditions or at any other address or email address as otherwise notified in writing to other party.
13.10. 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 these Terms and Conditions. No party shall have any claim for innocent or negligent misrepresentation based on any statement other than as set out in these Terms.
13.11. Regulatory compliance. Kyckr as a listed business on the Australian Securities Exchange may be required to report to the market the existence of this agreement. The Customer consents to Kyckr adhering to applicable Australian Securities Exchange Listing Rule requirements.
13.12. Governing law and jurisdiction. The Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of Ireland and the Irish Courts shall have exclusive jurisdiction over any dispute or claim that arises out of or in connection with the Terms and Conditions.