KudiGO Inc may amend the General Terms and any applicable Additional Terms or Policies at any time with notice that it deems to be reasonable in the circumstances, by posting the revised version on KudiGO’s website (the ‘KudiGO Website’) or communicating it to you through the Services (each, a ‘Revised Version’). Each Revised Version will be effective as of the time it is posted. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. However, any Dispute (as defined in Section 17) that arose before the changes will be governed by the General Terms, Additional Terms or Policies in place when the Dispute arose. Notwithstanding the foregoing, the Payment Terms may be varied only in accordance with the provisions set out in Section 37 of the Payment Terms.
TYou agree to KudiGO’s E-Sign Consent. Unless applicable (a) laws, (b) regulatory requirements, or (c) mandatory standards or codes of practice of any competent authority (collectively, ‘Applicable Law’) require an alternative or specific method of communication, you agree that any KudiGO Company may electronically provide or make available to you (as relevant) any Communication (as defined below), by (i) posting it on the KudiGO Website, (ii) pushing notifications through the Services, (iii) emailing it to the email address listed in your KudiGO Account, (iv) sending you a text message to the primary mobile phone number you have listed in your KudiGO Account, (v) uploading it to your KudiGO Account or (vi) making the Communications otherwise accessible via the KudiGO Website or other applications. In such circumstances, a Communication has the same meaning and effect as if such KudiGO Company had provided you with paper copies. A Communication is considered received by you twenty-four (24) hours after it is issued, unless the relevant KudiGO Company receives notice that it was not delivered.
If you wish to withdraw your consent to receiving electronic Communications, you should contact KudiGO Support. Any withdrawal of your consent will be effective four weeks after KudiGO Support receives your email. If KudiGO Companies are not able to communicate with you otherwise than electronically as set out in this Section 3, you may need to terminate your KudiGO Account or your use of certain or all of the Services.
You have the right to receive a Communication in paper form. To request a paper copy of any Communication at no charge, please email KudiGO Support no later than 180 calendar days of the date the Communication was issued.
You can change your email address by emailing KudiGO Support. You may also be able to change your email address through your KudiGO Account. A ‘Communication’ includes but is not limited to any: (a) disclosure, (b) notice, (c) agreement or policy such as the Additional Terms, (d) payment authorisation or transaction receipt or confirmation, (e) account statement or history or (f) relevant tax statement or document or any other written information relating to your KudiGO Account or your use of the Services.
You may not directly or indirectly export the Services. The Services may be subject to export restrictions imposed by Applicable Law. You may not, nor may you permit any third party to: (a) access or monitor any material or information on any KudiGO Company system using any manual process or robot, spider, scraper or other automated means; (b) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, Services or information from any KudiGO Company; (c) use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; (d) transfer any rights granted to you under these General Terms; (e) violate the restrictions in any robot exclusion headers on any Service, work around, bypass or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services or decompile, disassemble or otherwise reverse engineer the Services, except to the extent that such restriction is expressly prohibited by Applicable Law; (f) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by any person that signs up for a KudiGO Account to use Payment Services (a ‘KudiGO Seller’) or impose an unreasonable or disproportionately large load on KudiGO International’s infrastructure; (g) use the Services in a way that distracts or prevents you from obeying traffic or safety laws; (h) use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm; (i) use the Services for any illegal activity or goods or in any way that exposes you, other KudiGO Sellers, any KudiGO Company or any of their partners to harm; or (j) otherwise use the Services except as expressly allowed under this these General Terms and applicable Additional Terms and Policies. If KudiGO reasonably suspects that your KudiGO Account has been used for an unauthorised, illegal or criminal purpose, you give KudiGO express authorisation to share information about you, your KudiGO Account and any of your transactions with law enforcement.
Compatible Mobile Devices and Third Party Carriers
Neither KudiGO International nor KudiGO Inc warrants that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls—sometimes referred to as ‘jail broken.
You may be able to upload or provide photos, logos, products, loyalty programmes, promotions, advertisements and other materials or information (‘Content’) using the Services.
You grant us and our affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable and sub-licencable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform and publicly display your Content throughout the world in any media in order to provide and promote the Services. You retain all rights in your Content, subject to the rights you grant to us in these General Terms. You may modify or remove your Content via your KudiGO Account or by terminating your KudiGO Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.
You will not upload or provide Content or otherwise post, transmit, distribute or disseminate through the Services or present in your physical establishment any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or Intellectual Property Rights; (d) contains corrupted data or any other harmful, disruptive or destructive files; (e) advertises products or services competitive with KudiGO’s or its partners’ products and services, as determined by KudiGO International in its sole discretion; or (f) in KudiGO International’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services or which may expose KudiGO, its affiliates or its customers or other persons to harm or liability of any nature.
Although KudiGO has no obligation to monitor any Content, KudiGO has absolute discretion to remove Content at any time and for any reason without notice. You understand that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable. Neither KudiGO International nor KudiGO Inc takes any responsibility or assumes any liability for any Content, including any loss or damage to any of your Content.
Copyright and Trademark Infringement
Copyright and Trademark Infringement
KudiGO International and KudiGO Inc respect the copyright and trademark rights of others and ask you to do the same. KudiGO International and KudiGO Inc have adopted a Copyright & Trademark Policy regarding claims that third party material infringes the copyrights or trademarks of others. KudiGO International responds to all valid notices of such copyright and trademark infringement and its policy is to suspend or terminate the access privileges of those who infringe the copyrights and trademarks of others.
KudiGO Inc have implemented technical and organisational measures designed to secure your personal information from accidental loss and from unauthorised access, use, alteration or disclosure. However, neither KudiGO International nor KudiGO Inc can guarantee that unauthorised third parties will never be able to defeat those measures or use your personal information for improper purposes.
You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify KudiGO Support of any unauthorised use of your password or KudiGO Account or any other breach of security. Notwithstanding Sections 17 and 18, in the event of any dispute between two or more parties as to account ownership, KudiGO will be the sole arbiter of such dispute in its sole discretion after taking into consideration the recommendations of KudiGO International. KudiGO’s decision (which may include termination or suspension of any KudiGO Account subject to dispute) will be final and binding on all parties.
KudiGO Services include both paid-for Services (‘Paid Services’) and free Services for which no fees are charged (‘Free Services’). KudiGO International may offer certain Paid Services to be paid on a recurring basis (‘Subscription Services’), and others on an as-used or transactional basis (‘A La Carte Services’). Subscription Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, including after any free trial period, you agree to pay us the subscription fee and any applicable Taxes (‘Subscription Fee’). A La Carte Services may subject you to fees charged per usage and/or terms, including transaction volume. By using an A La Carte Service, you agree to pay the fees and any Taxes incurred at the time of usage (‘A La Carte Fees’ and, together with Subscription Fees, the ‘Paid Service Fees’).
In general, Paid Service Fees may be paid by debit card, credit card or deducted from your transaction proceeds. If you link a debit or credit card to your account, you authorise KudiGO Inc, to collect Paid Service Fees by debit from your linked debit card or charge to your linked credit card. Regardless of payment device, KudiGO Inc reserves the right to collect Paid Service Fees, by deduction from your transaction proceeds, the Balance (as defined in the Payment Terms) in your KudiGO Account or your linked bank account.
Taxes include any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, income, value-added, goods and services tax or similar tax, gross receipts, excise, real or personal property, sales, withholding, social security, occupation, use, severance, environmental, licence, net worth, payroll, employment, franchise, transfer and recording taxes, fees and charges, imposed by any domestic or foreign taxing authority (‘Taxes’).
Unless otherwise stated, all Paid Services Fees are exclusive of any Taxes, including any value-added tax, goods and services tax or similar tax (‘VAT’). You are responsible and liable for determining any and all Taxes, including any VAT, required to be assessed, incurred, collected, paid or withheld for your use of the Services. You also are responsible and liable for (a) determining whether Taxes, including any VAT, apply to your sale of products and services, payments received, and any other transactions arising from or out of your use of the Services, and (b) calculating, collecting, reporting or remitting any Taxes, including any VAT, to the appropriate tax and revenue authorities. KudiGO specifically disclaims any liability for such Taxes.
Notwithstanding the foregoing, KudiGO may charge Taxes, including any VAT, as required by law, which you agree to pay, unless you provide KudiGO with timely appropriate, complete, and accurate information and documentation satisfying the legal and tax requirements of the relevant governmental or tax authority to establish that the otherwise applicable VAT is not required to be charged by KudiGO.
KudiGO may be obligated under applicable laws to report certain information to tax and revenue authorities (‘Tax Information’) and/or you with respect to your use of the Services. Upon request, you shall provide KudiGO with the necessary information to complete any applicable Tax Information reporting and recertify such information from time to time, as may be required by applicable law. If you use our Services you acknowledge that we will report to the applicable tax and revenue authorities the required Tax Information (including the total amount of payments you received during the relevant reporting period). We also may, but are not obligated to, send to you the Tax Information reported.
Unless otherwise required by Applicable Law, KudiGO may immediately terminate these General Terms and any applicable Additional Terms or suspend or terminate your KudiGO Account or your access to any Service. KudiGO may terminate your KudiGO Account if you, as a for-profit business, as a matter of policy, discriminate in providing goods or services to people based on sexual preference, race, colour, religion, sex, national origin, age or disability. Notwithstanding the foregoing, KudiGO Inc may only terminate the Payment Services (as defined in the Payment Terms) in accordance with the Payment Terms.
You may terminate these General Terms or any Additional Terms at any time from your KudiGO Account Settings. If you terminate these General Terms, you will be deemed to have terminated the Payment Terms on the same day.
Effect of Termination
If these General Terms or your KudiGO Account is terminated or suspended for any reason: (a) any rights granted under these General Terms will end, (b) you agree to immediately terminate and cease use of all Services, (c) KudiGO Inc may (but has no obligation to) delete your information and account data stored on its servers and (c) no KudiGO Company will be liable to you or any third party for compensation, reimbursement or damages for any termination or suspension of the Services or for deletion of your information or account data. In addition to any continuing obligations under any Additional Terms, the following sections of these General Terms survive and remain in effect in accordance with their terms upon termination: 6 (Your Content), 7 (Copyright and Trademark Infringement), 10 (Taxes), 12 (Effect of Termination), 13 (Indemnity), 14 (Your Representations and Warranties), 15 (Our Representations and Warranties), 16 (Limitation of Liability), 17 (Third Party Products), 18 (Disputes), 19 (Arbitration), 20 (Governing Law), 21 (Limitation on Time to Initiate a Dispute), 22 (Assignment), 23 (Third Party Service and Links to Other Web Sites) and 24 (Other Provisions).
You will indemnify, defend and hold each KudiGO Entity (as defined below) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including without limitation reasonable legal fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties or obligations set forth in these General Terms; (b) your wrongful or improper use of the Services; (c) your violation of any Applicable Law; and (d) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code.
‘KudiGO Entity’ means (i) each KudiGO Company, (ii) each of the licensors, suppliers and processors of each KudiGO Company and (iii) each of the respective affiliates, officers, employees, agents or contractors of each entity set forth in clauses (i) and (ii).
Your Representations and Warranties
You represent and warrant to KudiGO that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power and ability to enter into and perform under these General Terms, including on behalf of any business using the Services hereunder; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all Applicable Law; (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with these General Terms and the Additional Terms.
Our Representations and Warranties
Our Representations and Warranties
EACH KudiGO ENTITY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
NO KudiGO ENTITY WARRANTS OR GUARANTEES THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
No KudiGO Entity warrants, endorses, guarantees or assumes responsibility for any product or services advertised or offered by a third party. No KudiGO Entity has control of or liability for, goods or services that are paid for using the Services.
Subject to the foregoing, KudiGO Inc warrants that the Payment Services will be provided with reasonable care and skill. If this warranty is breached, you must notify KudiGO Support as soon as possible. You must give KudiGO Support a reasonable time to fix the problem, which solution may include (a) supplying you with a reasonable way to work around the problem that is not materially detrimental to you and/or (b) re-performing any relevant Service(s). KudiGO Support will attempt to fix any such problems without any additional charge to you. If KudiGO Support is able to do so within a reasonable time, this will be your sole and exclusive remedy in relation to any breach and no KudiGO Company will have any obligation or liability in relation to such breach.
Limitations of Liability
KudiGO Inc will provide the Payment Services to you in accordance with the Payment Terms. KudiGO Inc will provide the SaaS Services (as defined in the SaaS Terms) to you in accordance with the SaaS Terms. For the avoidance of doubt, KudiGO Inc shall have no liability to you in respect of the SaaS Services or the performance or non-performance of any obligations of KudiGO International under the SaaS Terms or these General Terms shall have no liability to you in respect of the Payment Services or the performance or non-performance of any obligations of KudiGO Inc under the Payment Terms or these General Terms.
Neither your nor KudiGO’s liability: (a) for death or personal injury caused by its negligence; (b) for fraudulent misrepresentation or for any other fraudulent act or omission; (c) for breach of any statutorily-implied term as to title to goods supplied; (d) under Part I of the Consumer Protection Act 1987; (e) for any other liability which may not lawfully be excluded or limited including under the Payment Services Regulations 2017, is excluded or limited by these General Terms, even if any other term of these General Terms would otherwise suggest that this might be the case.
No KudiGO Entity will be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of customers or contracts; (d) loss of or damage to reputation or goodwill; (e) loss of opportunity; (f) loss of anticipated savings; (g) loss of any software or data; (h) loss of use of hardware, software or data; (i) loss or waste of management or other staff time; or (j) indirect, consequential or special loss, arising out of or relating to these General Terms, whether or not such loss was foreseeable or if the Party which would otherwise be liable for such loss was advised of its possibility (and, for the purposes of this Section, the term ‘loss’ includes a partial loss or reduction in value as well as a complete or total loss).
No KudiGO Entity will be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of: (a) the use of any Service except for its normal intended purpose; (b) any adaptation or modification of any Service or integration or combination with any other product or material not supplied by any KudiGO Company, in each case carried out by anyone other than any KudiGO Company or without its express written consent; (c) the compliance by any KudiGO Company with any design, specification or instructions provided by you on your behalf; and/or (d) any Merchant Content or Third Party Services.
Subject to the first, second and third paragraphs of this Section 15, any KudiGO Entity’s total liability arising out of or relating to these General Terms or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) will be limited, in respect of each event or series of connected events, to the greater of: (a) the total of all amounts payable by you under these General Terms in the three-month period immediately preceding the event giving rise to such liability (or, in the case of a series of connected events, the first such event); and (b) $100 (USD).
Third Party Products
Except as expressly set out in these General Terms, all third party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support or warranty assistance with the Muira reader provided to you by KudiGO, please contact KudiGO Support. For service, support or warranty assistance for other third party hardware or other products, you should contact the manufacturer directly.
‘Disputes’ are defined as any claim, controversy or dispute between you and any KudiGO Entity, including any claims relating in any way to these General Terms or the Services or any other aspect of your relationship with any KudiGO Entity.
Any Dispute between you and either or both of KudiGO Inc a (such KudiGO party to a Dispute, the ‘KudiGO Party’) arising out of or in connection with these General Terms or any Additional Terms or Policies, including in respect of their interpretation, subject-matter or termination, will be referred to and finally resolved by arbitration under the rules of the state of Delware, which rules are deemed to be incorporated by reference into these General Terms. The place and seat of arbitration will be Delaware USA. The language to be used in the arbitration proceedings will be English. The arbitrator’s decision will be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The KudiGO Party will pay all the arbitration fees due for any Dispute. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, the KudiGO Party will not seek to have you pay its attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and any KudiGO Party also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorised users or beneficiaries of the Services. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
Notwithstanding the foregoing, nothing in these General Terms, Policies, Additional Terms or related documents will prevent any party from commencing proceedings and pursuing claims before a court of competent jurisdiction in accordance with the second paragraph of Section 19 in cases in which interim, injunctive or declaratory relief is required or where the right to issue proceedings would be prejudiced by the impending expiration of any applicable limitation period.
Notwithstanding anything to the contrary in this Section 19, any Dispute, to the extent arising out or of connection with the Payment Services, may only be resolved in accordance with Section 39 of the Payment Terms.
These General Terms and any Dispute are governed by the law of the state of Delaware, without regard to choice of law or conflicts of law principles.
Subject to and without waiver of the arbitration provisions in Section 18, you irrevocably agree that the Delaware Courts in the United States Of America, will have exclusive jurisdiction to settle any Dispute, but KudiGO Inc is entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce their respective Intellectual Property Rights and/or Confidential Information.
Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
These General Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
Third Party Services and Links to Other Web Sites
These General Terms and any applicable Additional Terms and Policies, constitute the entire agreement between you and KudiGO and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
You and each KudiGO Company agree that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. You and each KudiGO Company agree that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these General Terms and any applicable Additional Terms and Policies. If any provision of these General Terms or any Additional Term is invalid or unenforceable under Applicable Law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under Applicable Law and the remaining provisions will continue in full force and effect. These General Terms do not limit any rights that KudiGO International or KudiGO Inc may have under trade secret, copyright, patent or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.
Except as provided by this Section 23, no express term of these General Terms or any term implied hereunder is enforceable by any person who is not a party hereto, but this does not affect any right or remedy of a third party which exists or is available, apart from pursuant to that Act. Any KudiGO Entity may enforce any provision of these General Terms subject to and in accordance with the provisions of the Act.
Nothing in these General Terms or in any document referred to herein or in any arrangement contemplated herein creates a partnership or joint venture.
It is a condition of these General Terms that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under these General Terms, each party hereto will at all times ensure its compliance with all Applicable Law relating to anti-bribery and anti-corruption, (‘Anti-bribery Laws’) and that no party hereto will commit (or procure the commission of) any breach of any Anti-bribery Laws or do anything that would cause any other party to commit an offence under any Anti-bribery Laws.