1. Your Kynein Account
1.1 Eligibility
Only businesses (including sole proprietors), non-profit organizations registered in the United States, full-time employed individuals, or full-time students are eligible to apply for a Kynein Account and use the Services. Kynein and its Affiliates may provide Services to you or your Affiliates in other countries or regions under separate agreements. You and your Representative must not attempt to create a Kynein Account on behalf of or for the benefit of a user whose use of Kynein services was suspended or terminated by Kynein, unless Kynein approves otherwise.
1.2 Business Representative
You and your Representative individually affirm to Kynein that (a) your Representative is authorized to provide User Information on your behalf and to bind you to this Agreement; and (b) your Representative is an executive officer, senior manager, or otherwise has significant responsibility for the control, management or direction of your business. Kynein may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority.
1.3 Sole Proprietors and Individuals
If you are a sole proprietor or an individual, you affirm that you are responsible and liable for your use of the Services and your obligations to Customers, including payment of amounts you owe under this Agreement.
1.4 Age Requirements
If you are a sole proprietor or individual, and you are not old enough to enter into a contract on your own behalf (which is commonly but not always 18 years old), but you are 13 years old or older, your Representative must be your parent or legal guardian. If you are a legal entity that is owned, directly or indirectly, by an individual who is not old enough to enter into a contract on their own behalf, but the individual is 13 years old or older, your Representative must obtain the consent of either your board or an authorized officer. The approving board, authorized officer, parent or legal guardian is responsible to Kynein and is legally bound to this Agreement as if it had agreed to this Agreement itself. You must not use the Services if you are under 13 years of age.
2. Services and Support
2.1 Services
Kynein (and its Affiliates, as applicable) will make available to you the Services, including those described in the applicable Terms, and, if applicable, give you access to a Kynein Dashboard.
2.2 Services Terms
The Services Terms contain specific terms governing the parties’ rights and obligations related to the Services described in those Terms. If there are no Terms for a particular Kynein service, then only these General Terms govern. By accessing or using a Service, you agree to comply with the applicable Terms. If any term in these General Terms conflicts with a term in any Services Terms or set of terms incorporated by reference into this Agreement, then unless terms of lower precedence expressly state to the contrary, the order of precedence is: (a) the Services Terms; (b) these General Terms; and (c) all terms incorporated by reference into this Agreement. Your access to or use of the Services may also be subject to additional terms to which you agree through the Kynein Dashboard.
2.3 Service Modifications and Updates
Kynein may modify the Services and Kynein Technology at any time, including adding or removing functionality or imposing conditions on use of the Services. Kynein will notify you of material adverse changes in, deprecations to, or removal of functionality from, Services or Kynein Technology that you are using. Kynein is not obligated to provide any Updates. However, if Kynein makes an Update available, you must fully install the Update by the date or within the time period stated in Kynein's notice; or, if there is no date or period stated in the notice, then no later than 30 days after the date of the notice.
2.4 Subcontracts
Kynein may subcontract its obligations under this Agreement to third parties.
2.5 Services Restrictions
You may only use the Services for business purposes. You must not, and must not enable or allow any third party to:
(a) use the Services for personal, family or household purposes;
(b) act as service bureau or pass-through agent for the Services with no added value to Customers;
(c) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited, or access or attempt to access non-public Kynein systems, programs, data, or services;
(d) except as Law permits, reverse engineer or attempt to reverse engineer the Services or Kynein Technology;
(e) use the Services to engage in any activity that is illegal, fraudulent, deceptive or harmful;
(f) perform or attempt to perform any action that interferes with the normal operation of the Services or affects other Kynein users’ use of Kynein services;
(g) exceed any Services usage limitations stated in the Documentation; or
(h) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any part of the Services, Documentation, or the Kynein Website except as permitted by Law.
2.6 Support
Kynein will provide you with support to resolve general issues relating to your Kynein Account and your use of the Services through resources and documentation that Kynein makes available on the Kynein Website and in the Documentation. Kynein's support is also available by contacting Kynein at
contact us. Kynein is not responsible for providing support to Customers.
2.7 Third-Party Services
Kynein may reference, enable you to access, or promote (including on the KyneinWebsite) Third-Party Services. These Third-Party Services are provided for your convenience only and Nynein disapproves, endorse, or recommend any Third-Party Services to you. Your access and use of any Third-Party Service is at your own risk and Kynein disclaims all responsibility and liability for your use of any Third-Party Service. Third-Party Services are not Services and are not governed by this Agreement or Kynein's Privacy Policy. Your use of any Third-Party Service, including those linked from the Kynein Website, is subject to that Third-Party Service’s own terms of use and privacy policies (if any).
4. Fees for Service and Taxes
4.1 Fees for Service
The Fees are stated on the Kynein Pricing Page, unless you and Kynein otherwise agree in writing. Kynein may revise the Fees at any time. If Kynein revises the Fees for a Service that you are currently using, Kynein will notify you at least 30 days before the revised Fees apply to you.
4.2 Collection of Fees and Other Amounts
You must pay, or ensure that Kynein is able to collect, Fees and other amounts you owe under this Agreement when due. Kynein may deduct, recoup or setoff Fees and other amounts you owe under this Agreement, or under any other agreements you have with Kynein or any of its Affiliates, from your Kynein Account balance, or invoice you for those amounts. If you fail to pay invoiced amounts when due, if your Kynein Account balance is negative or does not contain funds sufficient to pay amounts that you owe under this Agreement, or under any other agreement with Kynein or any of its Affiliates, or if Kynein is unable to collect amounts due from your Kynein Account balance, then Kynein may, to the extent Law permits, deduct, recoup or setoff those amounts from: (a) if established and applicable, each Reserve; (b) funds payable by Kynein or its Affiliate to you or your Affiliate; (c) if established, each User Affiliate Reserve; (d) each User Bank Account; and (e) the Kynein account balance of each Kynein account that Kynein determines, acting reasonably, is associated with you or your Affiliate. If the currency of the amount being deducted is different from the currency of the amount you owe, Kynein may deduct, recoup or setoff an amount equal to the amount owed (using Kynein’s conversion rate) together with any fees Kynein incurs in making the conversion.
4.3 Taxes
Kynein’s fees exclude all Taxes, except as the Kynein Pricing Page states to the contrary. You have sole responsibility and liability for:
(a) determining which, if any, Taxes or fees apply to the sale of your products and services, acceptance of donations, or payments you make or receive in connection with your use of the Services; and
(b) assessing, collecting, reporting and remitting Taxes for your business.
If Kynein is required to withhold any Taxes, Kynein may deduct those Taxes from amounts otherwise owed to you and pay those Taxes to the appropriate taxing authority. If you are exempt from paying, or are otherwise eligible to pay a reduced rate on, those Taxes, you may provide to Kynein an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status or reduced rate eligibility, in which case Kynein will not deduct the Taxes covered by the certificate. You must provide accurate information regarding your tax affairs as Kynein reasonably requests, and must promptly notify Kynein if any information that Kynein prepopulates is inaccurate or incomplete. Kynein may send documents to you and taxing authorities for transactions processed using the Services. Specifically, Law may require Kynein to file periodic informational returns with taxing authorities related to your use of the Services. Kynein may send tax-related information electronically to you.
5. Termination, Suspension, and Survival
5.1 Termination
(a)
Your Termination. You may terminate this Agreement at any time by closing your Kynein Account. To do so, you must open
the account information tab in your account settings, select “close my account” and stop using the Services. If after termination you use the Services again, this Agreement will apply with an Effective Date that is the date on which you first use the Services again.
(b)
Kynein Termination. Kynein may terminate this Agreement (or any part) or close your Kynein Account at any time for any or no reason (including if any event listed in Sections 5.2(a)–(i) of these General Terms occurs) by notifying you. In addition, Kynein may terminate this Agreement (or relevant part) for cause if Kynein exercises its right to suspend Services (including under Section 5.2 of these General Terms) and does not reinstate the suspended Services within 30 days.
(c)
Termination for Material Breach. A party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and if capable of cure, does not cure the breach within 10 days after receiving notice specifying the breach. If the material breach affects only certain Services, the non-breaching party may choose to terminate only the affected Services.
(d)
Effect on Other Agreements. Unless stated to the contrary, termination of this Agreement will not affect any other agreement between the parties or their Affiliates.
5.2 Suspension
Kynein may immediately suspend providing any or all Services to you, and your access to the Kynein Technology, if:
(a) Kynein believes it will violate any Law, Financial Services Terms or Governmental Authority requirement;
(b) a Governmental Authority or a Financial Partner requires or directs Kynein to do so;
(c) you do not update in a timely manner your implementation of the Services or Kynein Technology to the latest production version Kynein recommends or requires;
(d) you do not respond in a timely manner to Kynein’s request for User Information or do not provide Kynein adequate time to verify and process updated User Information;
(e) you breach this Agreement or any other agreement between the parties;
(f) you breach any Financial Services Terms;
(g) you enter an Insolvency Proceeding;
(h) Kynein believes that you are engaged in a business, trading practice or other activity that presents an unacceptable risk to Kynein; or
(i) Kynein believes that your use of the Services (i) is or may be harmful to Kynein or any third party; (ii) presents an unacceptable level of credit risk; (iii) increases, or may increase, the rate of fraud that Kynein observes; (iv) degrades, or may degrade, the security, stability or reliability of the Kynein services, Kynein Technology or any third party’s system (e.g., your involvement in a distributed denial of service attack); (v) enables or facilitates, or may enable or facilitate, illegal or prohibited transactions; or (vi) is or may be unlawful.
5.3 Survival
The following will survive termination of this Agreement:
(a) provisions that by their nature are intended to survive termination (including Sections 4, 6.2, 8.4, 9, 10 and 11 of these General Terms); and
(b) provisions that allocate risk, or limit or exclude a party’s liability, to the extent necessary to ensure that a party’s potential liability for acts and omissions that occur during the Term remains unchanged after this Agreement terminates.
6. Use Rights
6.1 Use of Services
Subject to the terms of this Agreement, Kynein grants you a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free license during the Term to access the Documentation, and access and use the Kynein Technology, as long as your access and use is (a) solely as necessary to use the Services; (b) solely for your business purposes; and (c) in compliance with this Agreement and the Documentation.
6.2 Feedback
During the Term, you and your Affiliates may provide Feedback to a Kynein Entity. You grant, on behalf of yourself and your Affiliates, to Kynein and its Affiliates a perpetual, worldwide, non-exclusive, irrevocable, royalty-free license to exploit that Feedback for any purpose, including developing, improving, manufacturing, promoting, selling and maintaining the Kynein services. All Feedback is Kynein’s confidential information.
6.3 No Joint Development; Reservation of Rights
Any joint development between the parties will require and be subject to a separate agreement between the parties. Nothing in this Agreement assigns or transfers ownership of any IP Rights to the other party. All rights (including IP Rights) not expressly granted in this Agreement are reserved.
7. Data Security
7.1 Controls
Each party will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect data in its possession or under its control from unauthorized access, accidental loss and unauthorized modification. You are responsible for implementing administrative, technical, and physical controls that are appropriate for your business.
7.2 PCI-DSS
You must prevent any Credential Compromise, and otherwise ensure that your Kynein Account is not used or modified by anyone other than you and your representatives. If a Credential Compromise occurs, you must promptly notify and cooperate with Kynein, including by providing information that Kynein requests. Any act or failure to act by Kynein will not diminish your responsibility for Credential Compromises.
7.3 Data Breach
You must notify Kynein immediately if you become aware of an unauthorized acquisition, modification, disclosure, access to, or loss of Personal Data on your systems.
7.4 Audit Rights
If Kynein believes that a compromise of data has occurred on your systems, website, or app, Kynein may require you to permit a Kynein approved third-party auditor to audit the security of your systems and facilities. You must fully cooperate with all auditor requests for information or assistance. As between the parties, you are responsible for all costs and expenses associated with these audits. Kynein may share with Financial Services Partners any report the auditor issues.
8. Representations and Warranties
8.1 Representations and Warranties
You represent as of the Effective Date, and warrant at all times during the Term, that:
(a) you have the right, power, and ability to enter into and perform under this Agreement;
(b) you are a business (which may be a sole proprietor) or a non-profit organization located in the United States and are eligible to apply for a Kynein account and use the Services;
(c) you have, and comply with, all necessary rights, consents, licenses, and approvals for the operation of your business and to allow you to access and use the Services in compliance with this Agreement and Law;
(d) your employees, contractors and agents are acting consistently with this Agreement;
(e) your use of the Services does not violate or infringe upon any third-party rights, including IP Rights, and you have obtained, as applicable, all necessary rights and permissions to enable your use of Content in connection with the Services;
(f) you are authorized to initiate settlements to and debits from the User Bank Accounts;
(g) you comply with Law with respect to your business, your use of the Services and Kynein Technology, and the performance of your obligations in this Agreement;
(h) you comply with the Documentation;
(i) you comply with the Financial Services Terms, and are not engaging in activity that any Financial Partner identifies as damaging to its brand;
(j) you do not use the Services to conduct a Restricted Business, transact with any Restricted Business, or enable any individual or entity (including you) to benefit from any Restricted Business;
(k) you own each User Bank Account, and each User Bank Account is located in a Kynein-approved country for the location of your Kynein Account, as described in the Documentation; and
(l) all information you provide to Kynein, including the User Information, is accurate and complete.
8.2 Scope of Application
Unless this Agreement states to the contrary elsewhere, the representations and warranties in Sections 8.1 and 11.9 of these General Terms apply generally to your performance under this Agreement. Additional representations and warranties that apply only to a specific Service may be included in the Services Terms.
9. Indemnity
9.1 Kynein IP Infringement
(a) Defense and Indemnification. Kynein will defend you against any IP Claim and indemnify you against all IP Claim Losses.
(b) Limitations. Kynein’s obligations in this Section 11.1 do not apply if the allegations do not specify that the Kynein Technology, Services, or Mark of a Kynein Entity is the basis of the IP Claim, or to the extent the IP Claim or IP Claim Losses arise out of:
(i) the use of the Kynein Technology or Services in combination with software, hardware, data, or processes not provided by Kynein;
(ii) failure to implement, maintain and use the Kynein Technology or Services in accordance with the Documentation and this Agreement;
(iii) your breach of this Agreement; or
(iv) your negligence, fraud or willful misconduct.
(c) Process. You must promptly notify Kynein of the IP Claim for which you seek indemnification; however, any delay or failure to notify will not relieve Kynein of its obligations under this Section 11, except to the extent Kynein has been prejudiced by the delay or failure. You must give Kynein sole control and authority to defend and settle the IP Claim, but (i) you may participate in the defense and settlement of the IP Claim with counsel of your own choosing at your own expense; and (ii) Kynein will not enter into any settlement that imposes any obligation on you (other than payment of money, which Kynein will pay) without your consent. You must reasonably assist Kynein in defending the IP Claim.
(d) Other Kynein Actions. Kynein may in its discretion and at no additional expense to you:
(i) modify the Kynein Technology or Services so that they are no longer claimed to infringe or misappropriate IP Rights of a third party;
(ii) replace the affected Kynein Technology or Services with a non-infringing alternative;
(iii) obtain a license for you to continue to use the affected Kynein Technology, Services, or Mark; or
(iv) terminate your use of the affected Kynein Technology, Services, or Mark upon 30 days’ notice.
(e) Exclusive Remedy. This Section 9.1 states Kynein’s sole liability, and your sole and exclusive right and remedy, for infringement by the Kynein Technology, Services, or Marks of a Kynein Entity, including any IP Claim.
9.2 User Indemnification
(a) Defense. You will defend the Kynein Parties against any Claim made against any of the Kynein Parties to the extent arising out of or relating to:
(i) your breach of any of your representations, warranties or obligations under this Agreement;
(ii) your use of the Services, including use of Personal Data;
(iii) an allegation that any of the Marks you license to Kynein, or your Content, infringes on or misappropriates the rights, including IP Rights, of the third party making the Claim; or
(iv) a User Party’s negligence, willful misconduct or fraud.
(b) Indemnification. You will indemnify the Kynein Parties against all Kynein Losses arising out of or relating to Claims described in this Section 9.2.
10. Disclaimer and Limitations on Liability
The following disclaimer and limitations will apply notwithstanding the failure of the essential purpose of any limited remedy.
10.1 Disclaimer
Kynein provides the Services and Kynein Technology “AS IS” and “AS AVAILABLE”. Except as expressly stated as a “warranty” in this Agreement, and to the maximum extent permitted by Law, Kynein does not make any, and expressly disclaims all, express and implied warranties and statutory guarantees with respect to its performance under this Agreement, the Services, Financial Partners, the Kynein Technology, Kynein Data and the Documentation, including as related to availability, the implied warranties of fitness for a particular purpose, merchantability and non-infringement, and the implied warranties arising out of any course of dealing, course of performance or usage in trade. The Kynein Parties are not liable for any losses, damages, or costs that you or others may suffer arising out of or relating to hacking, tampering, or other unauthorized access or use of the Services, your Kynein Account, or Protected Data, or your failure to use or implement anti-fraud or data security measures. Further, the Kynein Parties are not liable for any losses, damages, or costs that you or others may suffer arising out of or relating to (a) your access to, or use of, the Services in a way that is inconsistent with this Agreement or the Documentation; (b) unauthorized access to servers or infrastructure, or to Kynein Data or Protected Data; (c) Service interruptions or stoppages; (d) bugs, viruses, or other harmful code that may be transmitted to or through the Service (e) errors, inaccuracies, omissions or losses in or to any Protected Data or Kynein Data; (f) Content; or (g) your or another party's defamatory, offensive, fraudulent, or illegal conduct.
10.2 Limitations on Liability
(a) Indirect Damages. To the maximum extent permitted by Law, the Kynein Parties will not be liable to you or your Affiliates in relation to this Agreement or the Services during and after the Term, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for any lost profits, personal injury, property damage, loss of data, business interruption, indirect, incidental, consequential, exemplary, special, reliance, or punitive damages, even if these losses, damages, or costs are foreseeable, and whether or not you or the Kynein Parties have been advised of their possibility.
(b) General Damages. To the maximum extent permitted by Law, the Kynein Parties will not be liable to you or your Affiliates in relation to this Agreement or the Services during and after the Term, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for losses, damages, or costs exceeding in the aggregate the greater of (i) the total amount of Fees you paid to Kynein (excluding all pass-through fees levied by Financial Partners) during the 3-month period immediately preceding the event giving rise to the liability; and (ii) $500 USD.
11. Dispute Resolution and Agreement to Arbitrate
11.1 Governing Law
The laws of the state of California will govern this Agreement, without giving effect to its conflict of law principles.
11.2 Binding Arbitration
(a) All disputes, claims and controversies, whether based on past, present or future events, arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s IP Rights (which will be resolved in litigation before the United States District Court for the Northern District of California), will be determined by binding arbitration in San Francisco, California before a single arbitrator.
(b) The American Arbitration Association will administrate the arbitration under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 USD (excluding interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 USD (excluding interest, attorneys’ fees and arbitration fees and costs), and in other cases where the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply.
(c) The arbitrator will apply the substantive law of the State of California and of the United States, excluding their conflict or choice of law rules.
(d) Nothing in this Agreement will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
(e) The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provisions in this Section 11 referencing applicable substantive law, the Federal Arbitration Act (9 U.S.C. Sections 1-16) will govern any arbitration conducted in accordance with this Agreement.
11.4 Confidentiality
The parties will keep confidential the existence of the arbitration, the arbitration proceeding, the hearing and the arbitrator’s decision, except (a) as necessary to prepare for and conduct the arbitration hearing on the merits; (b) in connection with a court application for a preliminary remedy, or confirmation of an arbitrator’s decision or its enforcement; (c) Kynein may disclose the arbitrator’s decision in confidential settlement negotiations; (d) each party may disclose as necessary to professional advisors that are subject to a strict duty of confidentiality; and (e) as Law otherwise requires. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration, except as Law requires or if the evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
11.5 Conflict of Rules
In the case of a conflict between the provisions of this Section 11 and the AAA Rules, the provisions of this Section 11 will prevail.
11.6 Class Waiver
To the extent Law permits, any dispute arising out of or relating to this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. Notwithstanding any other provision of this Agreement or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of this class waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither party is entitled to arbitration.
11.7 No Jury Trial
If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
12. Modifications to this Agreement
Kynein may modify all or any part of this Agreement at any time by posting a revised version of the modified General Terms (including the introduction to this Agreement and the Definitions), Services Terms or terms incorporated by reference on the Kynein Legal Page or by notifying you. The modified Agreement is effective upon posting or, if Kynein notifies you, as stated in the notice. By continuing to use Services after the effective date of any modification to this Agreement, you agree to be bound by the modified Agreement. It is your responsibility to check the Kynein Legal Page regularly for modifications to this Agreement. Kynein last modified these General Terms on the date listed under the “General Terms” heading, and each set of Services Terms on the date listed under the heading for those terms. Except as this Agreement (including in this Section 13) otherwise allows, this Agreement may not be modified except in a writing signed by the parties.
13. General Provisions
13.1 Electronic Communications
By accepting this Agreement or using any Service, you consent to electronic communications as described in the
E-SIGN Disclosure, which is incorporated into this Agreement by this reference.
13.2 Notices and Communications
(a)
Notices to Kynein. Unless this Agreement states otherwise, for notices to Kynein, you must
contact us. A notice you send to Kynein is deemed to be received when Kynein receives it.
(b)
Communications to you. In addition to sending you a Communication electronically as Section 15.1 of these General Terms describes, Kynein may send you Communications by physical mail or delivery service to the postal address listed in the applicable Kynein Account. A Communication Kynein sends to you is deemed received by you on the earliest of (i) when posted to the Kynein Website or Kynein Dashboard; (ii) when sent by text message or email; and (iii) three business days after being sent by physical mail or when delivered, if sent by delivery service.
13.3 Legal Process
Kynein may respond to and comply with any Legal Process that Kynein believes to be valid. Kynein may deliver or hold any funds or, subject to the terms of Kynein’s Privacy Policy, any data as required under the Legal Process, even if you are receiving funds or data on behalf of other parties. Where Law permits, Kynein will notify you of the Legal Process by sending a copy to the email address in the applicable Kynein Account. Kynein is not responsible for any losses, whether direct or indirect, that you may incur as a result of Kynein’s response or compliance with a Legal Process in accordance with this Section 15.3.
13.4 Collection Costs
You are liable for all costs Kynein incurs during collection of any amounts you owe under this Agreement, in addition to the amounts you owe. Collection costs may include attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, applicable interest, and any other related cost.
13.5 Interpretation
(a) No provision of this Agreement will be construed against any party on the basis of that party being the drafter.
(b) References to “includes” or “including” not followed by “only” or a similar word mean “includes, without limitation” and “including, without limitation,” respectively.
(c) Except where expressly stated otherwise in a writing executed between you and Kynein, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services.
(d) All references in this Agreement to any terms, documents, Law or Financial Services Terms are to those items as they may be amended, supplemented or replaced from time to time. All references to APIs and URLs are references to those APIs and URLs as they may be updated or replaced.
(e) The section headings of this Agreement are for convenience only, and have no interpretive value.
(f) Unless expressly stated otherwise, any consent or approval that may be given by a party
(i) is only effective if given in writing and in advance; and (ii) may be given or withheld in the party’s sole and absolute discretion.
(g) References to “business days” means weekdays on which banks are generally open for business. Unless specified as business days, all references in this Agreement to days, months or years mean calendar days, calendar months or calendar years.
(h) Unless expressly stated to the contrary, when a party makes a decision or determination under this Agreement, that party has the right to use its sole discretion in making that decision or determination.
(i) The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
13.6 Waivers
To be effective, a waiver must be in a writing signed by the waiving party. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.
13.7 Force Majeure
Kynein and its Affiliates will not be liable for any losses, damages, or costs you suffer, or delays in a Kynein Entity's performance or non-performance, to the extent caused by a Force Majeure Event.
13.8 Assignment
You may not assign or transfer any obligation or benefit under this Agreement without Kynein’s consent. Any attempt to assign or transfer in violation of the previous sentence will be void in each instance. If you wish to assign this Agreement, please
contact us. Kynein may, without your consent, freely assign and transfer this Agreement, including any of its rights or obligations under this Agreement. This Agreement will be binding on, inure to the benefit of, and be enforceable by the parties and their permitted assigns.
13.9 Export Control
Kynein may respond to and comply with any Legal Process that Kynein believes to be valid. Kynein may deliver or hold any funds or, subject to the terms of Kynein’s Privacy Policy, any data as required under the Legal Process, even if you are receiving funds or data on behalf of other parties. Where Law permits, Kynein will notify you of the Legal Process by sending a copy to the email address in the applicable Kynein Account. Kynein is not responsible for any losses, whether direct or indirect, that you may incur as a result of Kynein’s response or compliance with a Legal Process in accordance with this Section 15.3.
13.10 No Agency
Each party to this Agreement, and each Financial Partner, is an independent contractor. Nothing in this Agreement serves to establish a partnership, joint venture, or general agency relationship between Kynein and you, or with any Financial Partner. If this Agreement expressly establishes an agency relationship between you as principal and a Kynein Entity as agent, the agency conferred, including your rights as principal and a Kynein Entity's obligations as agent, is limited strictly to the stated appointment and purpose and implies no duty to you, or a Kynein Entity, and will in no event establish an agency relationship for tax purposes.
13.11 Severability
If any court or Governmental Authority determines a provision of this Agreement is unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provision were not present, and that any partially valid and enforceable provision be enforced to the extent that it is enforceable.
13.12 Cumulative Rights and Injunctions
The rights and remedies of the parties under this Agreement are cumulative, and each party may exercise any of its rights and enforce any of its remedies under this Agreement, along with all other rights and remedies available to it at law, in equity or under the Financial Services Terms. Any material breach by a party of Section 6 or Section 7 of these General Terms could cause the non-breaching party irreparable harm for which the non-breaching party has no adequate remedies at law. Accordingly, the non-breaching party is entitled to seek specific performance or injunctive relief for the breach.
13.13 Entire Agreement
This Agreement constitutes the entire agreement and understanding of the parties with respect to the Services, and supersedes all prior and contemporaneous agreements and understandings.
