This Agreement commences on the date that you accept it by checking a box or clicking on a button (or something similar) when you are asked to confirm that you accept this Agreement. Acceptance in any of the foregoing manners (or other similar means) indicates that you agree to the terms and conditions of this Agreement. If you are accepting on behalf of a company, organization, or other entity, then (1) “you” includes you and that entity, and (2) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
Please read this agreement carefully to ensure that you understand each provision. This Agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
1.1 “API(s)” means the application programming interface(s) made available by Kylie.ai on the Site and in connection with the Services.
1.2 “Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
1.3 "Customer Data" means data and other information made available to Kylie.ai through the use of the Kylie.ai Services under this Agreement, including but not limited to data from social media sites, customer relationship management software, or through any third-party integration offered through the Kylie.ai Services.
1.4 “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Service.
1.5 “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.
1.6 “Kylie.ai Content” means the data transmitted by Kylie.ai through the APIs.
1.7 “Kylie.ai Technology” means our proprietary software and other technology provided via the Services, including any and all enhancements, modifications, updates, upgrades, and derivative works to the foregoing.
1.8 “Service(s)” means the hosted services provided by us.
1.9 “Site” means our website through which certain Services may be accessed or made available to Users.
1.10 “User” means your employees, representatives, consultants, contractors, or agents who are authorized to use the Services and have been supplied user identifications and passwords by you (or by us at your request).
2.1 PROVISION OF SERVICES; ACCESS RIGHT. Subject to your payment of the applicable fees, during the term of this Agreement, we will provide you with the Service(s) chosen by you. The Services include the standard features and functionality applicable to the Services, and any changes, modifications, or improvements to such Services, but excluding any new modules that we market and sell or provide as separate products or substantial improvements to such Services. The Services are purchased on a subscription basis. Subject to the terms and conditions of this Agreement, Kylie.ai grants you a non-exclusive, non-sublicenseable, nontransferable right to: (a) access and use the Services and display the Kylie.ai Technology; and (b) access and use the APIs to receive the Kylie.ai Content, in each case solely for your internal business purposes. You may have employees, agents, consultants and independent contractors access the Services solely in performing services on your behalf in accordance with the provisions of this Agreement, provided that you bind them to all applicable provisions of this Agreement and you remain responsible for their performance under this Agreement in all respects. No implied licenses are granted hereunder; we reserve all rights not expressly granted.
2.2 INDIVIDUAL FEATURES AND SERVICES. We agree to make certain Services available to you as agreed upon between us. Some of these Services may be made available for no charge, and some may be made available for a fee as described in further detail below. Our Services may be varied, updated, replaced, removed, supplemented or added to by us at any time in our sole discretion. We will notify you of a change to the Services in advance only if the change does not preserve, extend, or enhance the features or functionality of the Services.
2.3 THIRD PARTY COMPONENTS. Certain third party components provided in or with the Services (“Third Party Components”) are subject to various “open source” or commercial licenses. Your use of the Third Party Components is subject to and governed by the applicable Third Party Component license(s) and is not subject to the terms and conditions of this Agreement, except that this Section 2.3, the warranty exclusions and disclaimers in Section 7, and the limitation of liability provisions of Section 8 also govern your use of the Third Party Components.
2.4 FEEDBACK. If you provide us with any suggestions, comments or other feedback pertaining to the Services, Site, or Kylie.ai Technology (collectively, “Feedback”), such Feedback is and will be given entirely voluntarily. We will be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback provided to it as we see fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
We are and will remain the sole and exclusive owner of all proprietary rights, including all Intellectual Property Rights, in and to (a) the APIs, Kylie.ai Content, Services, Site, and Kylie.ai Technology, including any modifications or improvements thereto; and (b) any inventions, works of authorship or information that is authored, conceived, reduced to practice, invented or otherwise developed in the course of performing any services hereunder. You acknowledge that our name, our logo, and the product names associated with the Services are our trademarks (or those of our suppliers or licensors), and no license to such marks is granted herein. No ownership of any of the foregoing or any intellectual property rights therein is transferred or granted to you except for the limited access rights expressly granted herein.
3.1 ACCESS AND USE OF THE SERVICES. You are responsible for the connection to the Site and Services, including the Internet connection. We are not responsible for any inability to meet our obligations under this Agreement to the extent that such inability results from or relates to your connection to the Site and Services. You may use the Services and Kylie.ai Technology only in accordance with this Agreement.
3.2 USE RESTRICTIONS. Without limiting the generality of the foregoing, you may not license, sell, distribute, rent, lease, lend, transfer, outsource, or otherwise provide access to any Services or utilize any Services for the benefit of any third party. Further, when using the Services and Kylie.ai Technology, you may not, and you will ensure that Users do not: (a) decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access the source code of the Services, Site, or Kylie.ai Technology, except as permitted by applicable law; (b) infringe the intellectual property or other proprietary rights of any third party; (c) interfere with or disrupt the Kylie.ai Technology, systems we use to host the Site or Services, or other equipment or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or the Services made known to you; (d) use the Services, Site, or Kylie.ai Technology in the operation of a service bureau or time-sharing service; (e) circumvent the user authentication or security of the Services, Site, or Kylie.ai Technology or any host, network, or account related thereto, attempt to gain unauthorized access to a network, computer, software application, or any part thereof, misrepresent the source, identity, or content of information transmitted via the Services, including by forging network packages or e-mail headers, or use or access the Services in a manner intended to avoid the payment of fees; (f) make any use of the Services, Site, or Kylie.ai Technology that violates any applicable local, state, national, international or foreign law; (g) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the Services, Site, or Kylie.ai Technology, (h) allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, you for access to the Services, Site, or Kylie.ai Technology; (i) cache, record, pre-fetch, or otherwise store any portion of the Kylie.ai Content, or attempt or provide a means to execute any “bulk download” operations; (j) modify the Kylie.ai Content, or use it to create a product that competes in any way with Kylie.ai or any of Kylie.ai’ products, including but not limited to the Services; (k) use the APIs on behalf of any third-party; (l) modify, rate, rank, review, vote or comment on, or otherwise respond to the Kylie.ai Content; or (m) copy, rent, lease, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized under applicable statutory law), modify or alter any part of the APIs. In addition, you may not: (1) use the Services, Site, or Kylie.ai Technology in any manner that we reasonably believe is abusive or contrary to applicable law; (2) remove, obscure, or alter our copyright notices, trademarks, or other proprietary rights notices on any Services, Site, or Kylie.ai Technology; or (3) during the term of this Agreement, assert or authorize, assist, or encourage any third party to assert, against us or any of our affiliates, any patent infringement or other intellectual property infringement or misappropriation claim regarding any component of the Services, Site, or Kylie.ai Technology.
3.3 ACCOUNTS. You must create an account to access and use the Services. You agree to provide accurate and complete information when signing up for an account. You are solely responsible for all activities that take place on or through your account, including the acts and omissions of your Users. You will, and you will require Users to, take appropriate security precautions including ensuring appropriately complex passwords, keeping passwords confidential, and regularly changing passwords. You will, and you will require Users to, comply with our security guidelines and procedures made known to you through the Services or otherwise. If you learn of a third party having obtained knowledge of a password without authorization, you will inform us of such unauthorized access without undue delay and promptly change the password. Rights of any User to utilize any Service cannot be shared or used by more than one (1) individual unless we expressly provide otherwise in writing. In addition, a User’s access information and privileges may not be transferred from one individual to another unless the original User no longer requires and is no longer permitted access to the applicable Services, as a result of which that individual is no longer a User. We are not responsible for any unauthorized access to your account, including any unauthorized use of the Services, and you agree to notify us promptly of any unauthorized use of your account. You may use the Services and register for an account with us only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of this Agreement. You may terminate your account at any time as set forth in Section 6.
3.4 RIGHT TO MONITOR AND ENFORCE. Kylie.ai may, but has no obligation to, monitor any content or traffic on the Services, for the purposes of ensuring that the Services are being used in accordance with this Agreement. We may, without notice to you: Intercept, block, or remove any content or traffic that we believe violates this Agreement, or applicable laws; and report to the appropriate authorities any conduct by you that we believe violates applicable laws, which may include disclosure of your relevant personal data, or usage history on the Services.
3.5 ACCOUNT SUSPENSION. We may suspend your account and access to the Services, Site, or Kylie.ai Technology without liability if: (a) we have reason to believe that the Services, Site, or Kylie.ai Technology have, are being, or will be used in violation of this Agreement; (b) you fail to make a payment to us when due; (c) we reasonably believe that your Services, Site, or Kylie.ai Technology are being accessed or used by third parties without your authorization; (d) we are required to do so by law; or (e) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. If your account remains suspended for period of thirty (30) days or more, we may terminate your account without notice to you as set forth in Section 6 (“Term and Termination”). If your account is suspended for any reason, you remain responsible for all fees accrued through the date of suspension. In addition, if your account is suspended due to clause (ii), you remain responsible for all contracted fees, notwithstanding such suspension.
4.1 CUSTOMER DATA LICENSE GRANT. By permitting us to collect your Customer Data or providing your Customer Data to us, you hereby expressly grant, and you represent and warrant that you have all rights necessary to grant, to Kylie.ai a nonexclusive, royalty-free, worldwide license during the term of the Agreement to use, transmit, distribute, modify, reproduce, display, and store the Customer Data for the purposes of: (i) providing the Services as contemplated herein; and (ii) enforcing Kylie.ai’ rights under the Agreement.
4.2 YOUR RESPONSIBILITIES FOR YOUR CUSTOMER DATA. In connection with your Customer Data, as of the date you accepted this Agreement and throughout the term of this Agreement, you represent, warrant and agree that:
(a) you have obtained the Customer Data lawfully, and the Customer Data does not and will not violate any applicable laws or a third party’s proprietary, tos or intellectual property rights;
(b) at all times, Customer Data has and will be collected by you in accordance with your publicly posted tos policy that permits you to share, collect, use and disclose such Customer Data as contemplated under this Agreement, and if required by applicable law, pursuant to consents obtained by you to do each of the foregoing. For clarity and without limitation, customer is responsible for the content and placement of consumer-facing disclosure regarding the collection and use of Customer Data;
c) we may exercise the rights to your Customer Data granted under this Agreement without liability or cost to any third party; and
(d) the Customer Data complies with the terms of this Agreement.
4.3 CUSTOMER DATA USE. Notwithstanding anything to the contrary herein, you agree that Kylie.ai may collect, analyze, and use Customer Data and data derived from Customer Data, including de-identified, aggregated or anonymized Customer Data, for purposes of operating, analyzing, improving, or marketing the Services. If Kylie.ai shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Customer Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific customer, user or individual. You further agree that Kylie.ai will have the right, both during and after the Term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
4.4 SERVICE USAGE DATA. For the sole purpose of providing and improving our Services, we may collect and use data relating to the usage of the Services, including without limitation monitoring and analyzing usage and traffic patterns of our websites and Services. This usage data is: (a) not Customer Data; (b) does not include any personal information about you, your Users, or your customers; and (c) is owned by Kylie.ai.
5.1 YOUR PRECAUTIONS. You will take reasonable security precautions including ensuring appropriately complex passwords, keeping your passwords confidential and regularly changing your passwords. You will be solely responsible for all activity, which takes place on or through your account.
5.2 OUR SAFEGUARDS. We have implemented commercially reasonable and legally compliant technical, administrative, and organizational measures designed to mitigate against accidental loss and from unauthorized access, use, alteration or disclosure of the data and other information you provide us in connection with your use of the Services (if any). However, you acknowledge and agree that we cannot guarantee that unauthorized third parties will not be able to defeat those measures. You acknowledge that it is not feasible for us to accommodate conflicting data security requirements from multiple customers; accordingly, failure to accommodate your specific data security requests or requirements will not be deemed a breach of this Agreement. For the avoidance of doubt, we do not warrant that your use of the Services is risk-free. We do not provide representations, warranties, or assurances against interception or access and, provided that we comply with the other provisions of this Section, we will not be responsible for any theft, illegal activity or other unauthorized acts resulting in loss of or damage to you or any User, or your or their computer, data or other property in connection with use of the Services.
6.1 TERM. This Agreement will commence on the day it is accepted by you, and will continue until terminated in accordance with the terms of this Agreement.
(a) By Either Party. Either party may terminate this Agreement if the other party breaches any of the provisions of this Agreement, and does not cure such breach within thirty (30) days of receiving written notice of such breach, except that for a breach of Section 3.2 (“Use Restrictions”) or 7 (“Confidentiality”), there will be no cure period.
(b) By Us. We may terminate your account immediately upon written notice if you breach Section 3.2, or if your account has been suspended for a period of thirty (30) days or more as set forth in Section 3.5. We may also suspend or terminate your account upon a determination by us that continued use of the Services may result in harm to the Services (including the Site, Kylie.ai Technology, and/or systems used to provide the Services) or our other customers, or result in a violation of applicable law, regulation, legal obligation or legal rights of another. In such event, in addition to any other remedies available at law or in equity, we will have the right immediately, in our sole discretion, to deactivate your user name(s) and password(s), until such time as the issue is resolved or this Agreement is terminated. In addition, we may terminate this Agreement for convenience by providing you with thirty (30) days advance notice.
(c) Effect of Termination. If this Agreement is terminated for any reason, then (i) subject to clause (iii) below, your access to the Services will terminate, and you will stop using the Services immediately, (ii) all contracted fees will be due and payable, and (iii) you will destroy or return the Confidential Information, if requested by us, certify such destruction or return. Notwithstanding any termination hereof, the provisions of Sections 2.7, 3.2, 4, 5, 6.2(c), 7, 8, 9, 11, 12, and 13 will survive any expiration or early termination of this Agreement for any reason.
You will use at least the same degree of care that you use for your own information of similar nature but no less than reasonable care, to protect the Confidential Information from misuse or unauthorized disclosure. You will use the Confidential Information only for purposes of performing under this Agreement, and not disclose the Confidential Information without our prior written consent.
8.1 NO WARRANTIES. Except as expressly provided herein, the APIs, Kylie.ai Content, Services, Site, and Kylie.ai Technology, are provided to you on an “as is” and “as available” basis without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, we and our suppliers, licensors, and partners disclaim all warranties, statutory, express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement of proprietary rights, with regard to the APIs, Kylie.ai Content, Services, Site, and Kylie.ai Technology. We do not represent or warrant that any Services or data provided by us will be accurate, complete, error-free, or backwards-compatible with prior versions, or that such Services or data will meet your specific requirements or expectations.
8.2 NO RESPONSIBILITY FOR DATA LOSS. Notwithstanding anything to the contrary stated herein, we will not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store or maintain any data you provide us, or any other data or information.
8.3 NO RESPONSIBILITY FOR ELECTRONIC COMMUNICATIONS. The APIs and Services may be subject to limitations, delays, and other problems inherent in the use of the internet, personal computers, and electronic communications. We are not responsible for any delays, delivery failures, or other damage resulting from such problems. Without limiting the generality of the foregoing, you understand that the technical processing and transmission of electronic communications is essential to your use of the service. You consent to our interception and storage of electronic communications and/or data you provide us, and understand that such interception and storage will involve transmission over the internet and over various networks that may not be owned, operated, or controlled by us. You acknowledge that changes to such data may occur (including encryption and compression) in order to conform and adapt such data to the technical requirements of connecting networks and/or devices. You acknowledge and understand that, when communicated across the internet, network facilities, or other electronic means, electronic communications may be accessed by unauthorized parties.
8.4 HIGH RISK USES OF THE SERVICES PROHIBITED. The Services are not designed or intended for uses where the failure of the Services could result in death, bodily injury, or environmental damage. You may not use the Services for any such purposes.
9.1 LIMITATION ON INDIRECT LIABILITY. Subject to section 9.3 (“exclusions”), under no circumstances, including, but not limited to negligence, will either you or we (or our affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers) be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation losses or liability resulting from loss of data, loss of revenue, anticipated profits, or loss of business opportunity) that result from your use or your inability to use the Services, Kylie.ai Technology, Site, or any other products or Services provided in connection with this Agreement, , even if you or we (or an authorized representative of ours) has been advised of the possibility of such damages.
9.2 LIMITATION ON DAMAGES. Subject to section 9.3 (“exclusions”), in no event will your or our (or our affiliates’, contractors’, employees’, agents’, or third-party partners’, licensors’, or suppliers’) total cumulative liability to the other party for all damages, losses, and causes of action arising out of or relating to this Agreement or your use of the Services, Site, or any other products or Services provided in connection with this Agreement, including without limitation your interactions with other users, (whether in contract, tort including negligence, warranty, or otherwise) exceed the amount paid or payable by you, if any, for accessing the Services during the twelve (12) months immediately preceding the day the act or omission occurred that gave rise to your claim or one thousand u.s. dollars ($1,000), whichever is greater.
9.3 EXCLUSIONS. The exclusions and limitations set forth in sections 9.1 and 9.2 above do not apply to a breach of section 2.5, 2.7, 3.2, 3.3, 7, or to either party’s indemnification obligations. In addition, the limitations set forth in section 9.2 will also not apply to direct damages to the extent arising out of a party’s gross negligence, intentional misconduct, or fraud.
9.4 LIMITATIONS ARE A BASIS OF THE BARGAIN. You acknowledge and agree that we have offered our Services, and entered into this Agreement, in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the disclaimers of warranty and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and us (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the disclaimers of warranty and the limitations of liability set forth herein form an essential basis of the bargain between you and us, without which the economic terms of this Agreement would be different.
The Services are controlled and operated from our facilities in the United States. We make no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. By using the Services, on behalf of yourself and all Users, you are consenting to have your information transferred to and processed in the United States.
To the fullest extent permissible under applicable law, you agree to indemnify, defend and hold harmless us and our affiliates, contractors, employees, agents, and third-party partners, licensors and suppliers from and against all claims, liabilities, causes of action, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of third party claims, suits, actions or proceedings relating to: (a) use of or access to the Services and any related data by you or any of your agents, employees, contractors; by anyone using your unique username, password or other appropriate security code; or by end users of your products or services; (b) breach of any provision of this Agreement; (c) your Customer Data; or (d) violation of any law, rule or regulation of the United States or any other country by you or any of your agents, employees, contractors, or by end users of your products or services. We will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same. We will notify you in a reasonably prompt manner of claims, suits, actions, or proceedings for which we are seeking the above indemnification, provided that failure to so notify will not relieve you of your obligations except to the extent your ability to defend the claim, suit, action or proceeding is prejudiced by the delay. You may use counsel of your choosing (subject to our written approval). Any settlement requiring us to admit liability or to pay any money will require our prior written consent; and we may join in the defense and participate in any settlement discussions with our own counsel at our own expense.
12.1 Governing Law. Except as provided in Section 12.2, this Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
12.2 Arbitration. Except as provided in this Section, any dispute arising under this Agreement will be determined by binding arbitration in San Francisco, California in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the "Federal Arbitration Act").
(a) Details. The arbitration will be governed by the then-current terms of the Commercial Arbitration Rules (the "Rules") of the American Arbitration Association (the "AAA") and will be held with a single arbitrator appointed in accordance with the Rules. The award of the arbitrator will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify the terms of this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction. Each party will be entitled to obtain a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 8.3 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. Under this Arbitration provision, both parties hereby give up the right to resolve any controversy or claim arising out of or relating to this Agreement by a judge and/or a jury. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the AAA, with all mediator fees and expenses paid equally by the parties.
Each party also agrees not to participate as a class representative or class member in any class action litigation, any class arbitration or any consolidation of individual arbitrations against each other. The parties specifically agree to the binding nature of the arbitration.
(b) Injunctive Relief. Notwithstanding any provision in this Section to the contrary, Kylie.ai may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of the terms of this Agreement.
(c) Individual Basis. Only It is the intent of the parties to require any claims or controversies between them to be submitted to arbitration on an individual basis only. CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR BE ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.
13.1 NOTICES. Either party may provide the other with notices required hereunder by confirmed email, first class mail, or personal delivery at the other party’s primary place of business. Notice will be deemed given twenty-four (24) hours after email is sent or three (3) business days after the date of postal mailing.
13.2 WAIVER. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by the waiving party.
13.3 REMEDIES. Your and our respective rights and remedies hereunder are cumulative. You acknowledge that the Services and Kylie.ai Technology contain our valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to us for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.
13.4 SEVERABILITY; INTERPRETATION. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions. Without limiting the generality of the foregoing, the limitation of liability provisions will remain in effect notwithstanding any unenforceability of any warranty or warranty disclaimer provision. Any list of examples following “including” or “e.g.,” is illustrative and not exhaustive, unless qualified by terms such as “only” or “solely.” All references (e.g., to sections, parties, terms, and attachments) are to the sections of, parties to, terms of, and attachments to this Agreement, unless expressly indicated otherwise. All captions are intended solely for your and our respective convenience, and none will affect the meaning of any provision. All references to “written,” “in writing,” or other words of similar import refer to a non-electronic, paper document only, except where electronic mail communication is expressly authorized.
13.5 ASSIGNMENT. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent (which may be withheld in our sole discretion), but may be assigned by us without restriction. Any permitted assignment of this Agreement will be binding upon and enforceable by and against your and our respective successors and assigns, provided that any unauthorized attempted assignment will be null and void and constitute a breach of this Agreement.
13.6 USE OF SUBCONTRACTORS. We will have sole authority in determining the method of operating and maintaining the Services, including the right to subcontract any or all of its responsibilities and obligations; provided, however, that we will remain responsible for our obligations hereunder.
13.7 U.S. GOVERNMENT RIGHTS. The Services are “commercial items,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227. 7202-4 (June 1995), all U.S. Government users acquire only those rights in the Services that are provided in this Agreement.
13.8 FORCE MAJEURE. We will not be liable to you or your Users for delays, failures, or inadequate performance that results from conditions outside of our reasonable control, including, without limitation, acts of God, natural disasters, systemic electrical, telecommunications, or other utility failures, earthquakes, threatened or actual acts of terrorism or war, riots, or governmental acts or orders.
13.9 INDEPENDENT CONTRACTORS; THIRD PARTY BENEFICIARIES. You and we are independent contractors, and nothing herein will be construed as creating a partnership, agency, or joint venture, and neither you nor we will have the ability to bind the other. There are no third-party beneficiaries to this Agreement.
13.10 PUBLICITY. If you are a company, you hereby grant to us the right to use your company’s name, trademarks, and logos solely for purposes of identifying and promoting your company as a client of ours during the term of this Agreement and thereafter. Further, we will have the right to issue a press release regarding the existence of the business relationship between you and us.
13.11 ENTIRE AGREEMENT. This Agreement, together with all incorporated documents and any additional agreements you may enter into with us in connection with the Services, constitutes the entire agreement between you and us relating to the subject matter herein, and it supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between you and us regarding its subject matter. This Agreement can only be modified in a writing signed by you and us, collectively. Signatures sent by electronic means (facsimile or scanned and sent via e-mail) will be deemed original signatures. Any preprinted terms on a purchase order or similar document are deemed rejected.