Terms of Use

These Terms are effective from seven (7) days of 24.05.2018 or seven (7) days from notification by us to you of them, whichever is the earlier. These Terms set out your legal rights and obligations when using the KITE Business Service (as defined below). Your acceptance of these Terms is a condition of our agreeing to allow you to use the KITE Business Service. If you do not agree to be bound by all of these Terms, do not access or use the KITE Business Service.

Amongst other things, these Terms will apply to any contract (a “Contract”) between us for the sale of Products (as defined below) to you or your customers or clients. These Terms are subject to and include our Privacy Policy, and our Cookie Policy. You agree that we are not responsible for, and do not endorse, User Content (as defined below) submitted to the KITE Business Service. We do not have any obligation to prescreen, monitor or edit any User Content. If User Content submitted by you or your customers or clients violates these Terms or applicable laws or regulations, you may bear legal responsibility for that User Content.

In this Agreement, unless the context otherwise requires:

Additional Charges means those additional charges payable in respect of the provision of the Additional Services, as agreed in writing from time to time.

Additional Services means any services provided by us to you that are outside of the scope of the KITE Business Service or the services to be provided by us under these Terms, as agreed in writing from time to time.

Affiliate means with respect to a Party, any other person controlling, controlled by, or under common control with, such Party, for only so long as such control exists.  For these purposes, “control” shall refer to: (i) the possession, directly or indirectly, of the power to direct the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, or (ii) the ownership, directly or indirectly, of more than 50 percent (50%) of the voting securities or other ownership interest of a person;

API means application programming interface.

Controller, processor, data subject, personal data and processing shall have the meanings ascribed to them in the Data Protection Legislation.

Personal Data means any personal data which may be supplied by You and/or your Affiliates to Kite under the Agreement and/or which Kite (and/or any Sub-Processor) processes on Your and/or your Affiliates behalf;

Data Protection Legislation means all laws relating to the processing of personal data, privacy and security, including, without limitation, the EU Data Protection Directive 95/46/EC (as will be superseded by the EU General Data Protection Regulation 2016/679 (“GDPR”)), the EU Privacy and Electronic Communications Directive 2002/58/EC, as implemented in each jurisdiction, and all amendments, or all other applicable international, regional, federal or national data protection laws, regulations and regulatory guidance.

Dispatch Confirmation means confirmation that a Product has been dispatched for delivery.

End Customer means the end user who places an order for your Product(s) via your website that constitutes an Order.

Event Outside Of Our Control means an event as particularised in Clause 13.2.

Fulfil means the manufacture and delivery of a Product in accordance with the relevant Order.

Intellectual Property Rights means any patents, trade marks, domain names, design rights, moral rights, topography rights, rights in databases, rights in software, copyrights, inventions, trade secrets and other confidential information, know how, business or trade names, get up, and all other intellectual property and neighbouring rights and rights of a similar or corresponding character in any part of the world (whether or not registered or capable of registration) and all applications and rights to apply for or for the protection of any of the foregoing, including any renewals or extensions.

KITE API means our proprietary application programming interface comprising the KITE Business Service as particularised in Clause 4.1.

KITE Business Service Account means the account designated to you for the purpose of effecting the KITE Business Service.

Losses means liabilities, losses, demands, damages, costs, claims, penalties, fines, amounts paid in settlement, encumbrances, reasonable expenses (including fees), interest, financing costs, charges or penalties, court costs, disbursements, reasonable legal fees and other professional costs.

Order means the purchase of a Product (or Products) by an End Customer that engages the Kite Business Service.

Order Cap means the cumulative value of the Orders that have been Fulfilled up to a value in US dollars (or other agreed currency) as agreed by us and you from time to time.

Order Cap Period means the period over which the Order Cap is reached (or, if applicable, exceeded) calculated from nil value until when the Order Cap has been reached and which shall reset to nil at that point and a new Order Cap Period shall commence.

Process and Processing have the meaning set out in the Data Protection Act 1998 and, from 25 May 2018, the General Data Protection Regulations (Regulation (EU) 2016/679).

Product means a product incorporating your User Content and Templates that are made available to Order via the Kite Business Service including any and all tangible products made available by us through the KITE Business Service.

SDK means software development kit.

Security Breach means any security breach relating to: (a)  Personal Data reasonably determined by us to be sufficiently serious or substantial to justify notification to the Information Commissioner’s Office or other relevant supervisory authority in accordance with the Data Protection Laws; or (b) Personal Data reasonably determined by us to be sufficiently serious or substantial to give rise to a material risk of litigation by third parties affected by the breach.

Sub-Processor means any person or entity which is not a Party to this Agreement and which is engaged by Kite to perform any or all of its obligations under the Agreement, including for the avoidance of doubt, an Affiliate of Kite.

Templates means any templates that are used in conjunction with the KITE APIs.

User Content means any data, text, files, information, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials that you submit, post or display on or via the KITE Business Service.

VAT means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.

Website means your website with which the KITE Business Service interfaces and through which Orders can be placed.

Wholesale Price means the wholesale price of a Product (inclusive of VAT, where applicable) as notified by us to you and as amended from time to time. The currency for the Wholesale Price shall be at our discretion.

you means the person using the KITE Business Service in accordance with these Terms and for the purposes noted therein.

As used in these Terms (unless the context otherwise requires):

  • the singular includes the plural and vice versa and the masculine includes the feminine and the neuter includes the masculine and the feminine;
  • references to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment of it;
  • a reference to a statute or statutory provision shall unless otherwise stated be construed as including a reference to any subordinate legislation (as defined by section 21(1) Interpretation Act 1978) made from time to time under the statute or statutory provision whether before or after the date on which you enter into these Terms;
  • references to a person include a partnership, corporation or association (whether incorporated or unincorporated), as well as a natural person;
  • references to a party are references to a party to these Terms and shall, except where the context requires otherwise, include its successors in title and permitted assignees;
  • references to clauses and schedules are to the clauses of, and schedules to these Terms;
  • the words other, includes, including, for example and in particular do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible;
  • references to these Terms are to these Terms as in force for the time being and as amended, supplemented, varied, modified, renewed or replaced or extended from time to time in accordance with the requirements of these Terms.

These Terms govern the use of the KITE Business Service offered by Kite Tech Ltd, trading as Kite.ly, (“Company” and “we” and “us”). We are registered in England and Wales under company number 9150770 and have our registered office at C/O Canon Europe Limited 3 The Square Stockley Park, Uxbridge, England, UB11 1ET.

We may revise these Terms at any time by amending this page. Please check this page from time to time to take notice of any changes we made, as they are binding on you for any use of the KITE Business Service following the date of posting the revised Terms on this page. Your use of the KITE Business Service after we post a change will constitute your acceptance of and agreement to the amended Terms. Therefore, you should frequently review these Terms and the connected documents to see if they have been changed.

  1. The “KITE Business Service” includes the services offered to you from time to time when you access the website at www.kite.ly. The KITE Business Service may include (without limitation) (i) access to the KITE API and/or other APIs and/or associated SDKs (together “KITE APIs”) made available to you including in order to integrate the KITE Business Service with other systems; (ii) use of the payment processing service made available to you; and (iii) the purchase of Products (including the submission of User Content for incorporation by us into Products), either on your own behalf or on behalf of your own End Customers or clients, including the use of our API dashboard.
  2. The KITE Business Service is only intended for use in a commercial context, rather than use as a consumer or otherwise in a private capacity. By using the KITE Business Service on behalf of a business, you confirm that:
    1. you have authority to bind that business on whose behalf you act; and
    2. you are not acting as a consumer.
  3. In consideration for using the KITE Business Service, you agree to pay us in accordance with the provisions of Clause 10.
  4. You must not use the KITE Business Service for any illegal or unauthorised purpose and in using the KITE Business Service you agree to comply with all applicable laws, rules and regulations, including in any jurisdiction from which you access the KITE Business Service. To the extent that the KITE Business Service (including the use of our site) is not legal in your jurisdiction, you may not use our site. In particular, you must not:
    1. submit violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via the KITE Business Service;
    2. defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not submit private or confidential information via the KITE Business Service without first obtaining the relevant consent;
    3. change, modify, adapt or alter the KITE Business Service or change, modify or alter another website so as to falsely imply that it is associated with the KITE Business Service or us;
    4. create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (a/k/a “spam”) to any KITE Business Service users;
    5. knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
    6. attempt to restrict another user from using or enjoying the KITE Business Service; or
    7. encourage or facilitate violations of these Terms.
  5. You are solely responsible for your interaction with other users of the KITE Business Service, whether online or offline. You agree that we are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Please exercise common sense and your best judgment when interacting with others.
  6. To the extent that the integration of the services offered by you with the KITE Business Service allows your customers or clients to access the KITE Business Service, you agree that you will be liable for the acts or omissions of such customers or clients as if they were your own.
  1. You may not use the KITE Business Service unless you have registered with us and provided the relevant details requested, after which we may designate to you a KITE Business Service Account. You are responsible for any activity that occurs through your KITE Business Service Account and you agree you will not sell, transfer, license or assign your KITE Business Service Account, followers, username, or any other rights associated with your KITE Business Service Account.
  2. You are responsible for keeping your password secret and secure and for ensuring that all users authorised to use your KITE Business Service Account comply with these Terms.
  3. You must ensure that all information you provide or provided to us upon registration and at all other times is true, accurate, current, complete and not misleading and you agree to update your information as necessary to maintain its truth and accuracy.
  4. You must not create accounts with the KITE Business Service through unauthorised means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
  5. You agree that you are responsible for all data or other charges you incur through use of the KITE Business Service, together with any third party websites, APIs or other use of services.
  1. You are solely responsible for your conduct and any data, text, files, information, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, “User Content”) that you submit, post or display on or via the KITE Business Service, whether that User Content originates from you or from your End Customers or clients. You acknowledge that we have no direct contractual relationship with your End Customers or clients and agree that you will be liable under these Terms for User Content submitted by your customers or clients, as if it had been submitted by you.
  2. You are solely responsible for developing and producing any Templates and for ensuring that such Templates are in accordance with the guidelines made available by us from time to time and that we are not liable in the event that any Products (as defined below) do not meet your requirements due to the incompatibility or unsuitability of the Templates used by you. For the avoidance of doubt, Clause 12.7 shall apply in the event that you are in breach of this Clause 6.2 and this shall not prejudice any other rights we may have under these Terms or at law.
  3. You (or your End Customers or clients) remain the owner of the Intellectual Property Rights in the User Content that you submit, but you hereby grant to us (and agree to procure the grant to us, as applicable, of) a non-exclusive, irrevocable, sub-licensable, transferable, world-wide, perpetual, royalty-free licence to use your User Content in order to facilitate your use of (and our provision to you of) the KITE Business Service and to show (in whole or in part) the KITE Business Service to other users or third parties who may be interested in the KITE Business Service. To the fullest extent permitted by law, you hereby waive (and shall procure the waiver of) any and all moral rights you may have in the User Content.
  4. You understand and agree that we cannot and will not be responsible for the User Content submitted, posted or displayed on the KITE Business Service and that you use the KITE Business Service (including submitting User Content) at your own risk. You acknowledge that we do not have any obligation to (although we may in our sole discretion) prescreen, monitor or edit any User Content. If User Content submitted by you or your End Customers or clients violates these Terms or applicable laws or regulations, you may bear legal responsibility for that User Content. For the avoidance of doubt, Clause 12.7 shall apply in the event that you are in breach of this Clause 6.4 and this shall not prejudice any other rights we may have under these Terms or at law.
  5. You represent and warrant that:
    1. you own the Intellectual Property Rights and other rights in the User Content submitted by you or your End Customers or clients on or through the KITE Business Service, or that you otherwise have the right to grant the rights and licenses set forth in these Terms.
    2. the posting and use of the User Content submitted by you or your End Customers or clients on or through the KITE Business Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trade mark and/or other Intellectual Property Rights;
    3. all royalties, fees, and any other monies owed by reason of User Content you or your End Customers or clients submit on or through the KITE Business Service, have been paid; and
    4. you have the legal right and capacity to enter into these Terms in your jurisdiction.
  6. We reserve the right to remove or refuse to use any User Content submitted on or through the KITE Business Service for any reason, without prior notice. User Content removed from the KITE Business Service may continue to be stored by us, including, without limitation, in order to comply with certain legal obligations.
  7. You shall (in place of any other liability in such respect) indemnify and keep fully and effectively indemnified us on demand from and against any and all Losses that we may suffer or incur (directly or indirectly) arising out of or in connection with any actual or alleged infringement of any Intellectual Property Rights which arises out of, or in connection with, the User Content or the Templates.
  1. Subject to Clause 7.2, we warrant that our KITE Business Service will be available and uninterrupted for 99.9% of the time.
  2. Except as set out in Clause 7.1, we do not guarantee that our KITE Business Service, or any content on it, will always be available, uninterrupted or error-free. We may suspend, withdraw, discontinue or change all or any part of our KITE Business Service without notice. We will not be liable to you if for any reason our KITE Business Service is unavailable at any time or for any period.
  3. You are responsible for making all arrangements necessary for you to have access to our KITE Business Service. You are also responsible for ensuring that all persons who access any of the KITE Business Service through you (including your End Customers or clients) are aware of these Terms and other applicable terms and conditions, and that they comply with them.
  4. We encourage you to maintain your own backup of User Content submitted to us. We will not be liable to you for any modification, suspension, or discontinuation of the KITE Business Services, or the loss or corruption of any User Content. You also acknowledge that the internet may be subject to breaches of security and that the submission of User Content or other information may not be secure and is therefore uploaded at your own risk.
  1. This Clause 8 and also Clause 9 and Clause 10 shall apply if your Products are purchased and an Order is placed through the KITE Business Service.

    How an Order is placed

  2. After an Order is placed this will constitute an offer by you to us to arrange for the manufacture and delivery of the relevant Product and we will confirm our acceptance to you by sending you a notification (via the API dashboard made available to you for accessing and monitoring your KITE Business Service Account (the “Dashboard”) containing an Order number (a “Confirmation”). The contract between us in relation to the Order for Product(s) for which the Confirmation has been sent will only be formed when we send you the Confirmation or provide the Confirmation for you within the Dashboard.
  3. If we are unable to supply a Product, for example because that Product is not in stock or no longer available or because of an error in the price within the KITE Business Service interface, we will inform you of this prior to sending you a Confirmation and we will not process the Order. If you have already paid for the Product(s), or we have otherwise taken payment, we will refund you the full amount in respect of Products that cannot be supplied as soon as possible.
  4. Once the contract between us is formed as per Clause 8.2 you may not cancel the Order. This is because the Products you Order are entirely bespoke and we use a highly automated print system whereby all Orders are placed immediately into the print system for processing, once Confirmation has been issued to you in accordance with Clause 8.2.

    Quality of the Products

  5. The images of the Products within the KITE Business Service are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer’s display of the colours accurately reflect the colour of the Products. Products may vary slightly from those images. The packaging of the Products may also vary from that shown on images within the KITE Business Service.
  6. We make every effort to supply the Products as advertised but reserve the right to supply the Products subject to minor variations in actual dimensions and specifications stated. All Orders will be produced using the information provided by you at the time of Order and we will not be held responsible for any errors submitted by the End Customer, including where User Content of a low resolution or file size has been submitted to print.
  7. We are committed to providing the highest quality Products. However, on rare occasions, Products may be found to be faulty or defective. You must tell us of any Product faults within 20 days of the date on which we sent you the Confirmation relating to those Products. To report any problems, please contact us on hello@kite.ly. We will endeavour to respond to all customer service requests within 48 hours. We will only refund or replace items where required to do so by law and may require photographic evidence of the faulty or defective Products.
  1. We use a third party printer to create Products through the KITE Business Service, and our third party suppliers deliver the Products to the relevant address supplied within an Order. We will use our reasonable endeavours to Fulfil your Order by the estimated delivery date set out in the Dispatch Confirmation, generally within 5 working days UK, 10 working days Europe or 14 working days internationally unless there is an Event Outside Our Control (as defined in Clause 14). If we are unable to meet the estimated delivery date because of an Event Outside Our Control, we will contact you with a revised estimated delivery date.
  2. Delivery is deemed to take place when the Products are delivered to your End Customer’s nominated address, whereupon the risks of loss and all damage and all other risks pass to the End Customer.
  3. We retain title in the Product(s) until delivery of the Product(s) to the End Customer or payment has been made for the Product(s), whichever occurs first. Upon delivery of the Products to the End Customer, title shall pass to the End Customer.
  4. We will attempt to deliver internationally to countries with a functioning postal service (the “International Delivery Destinations”). However you acknowledge that we cannot be liable for the functioning of such postal services.
  5. If you order Products for delivery to one of the International Delivery Destinations, your Order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount. You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your Order. We shall have no liability for any Products not delivered to an International Delivery Destination where the Products are seized or held in Customs, or where Products cannot be released or are destroyed.
  1. If you purchase Products, you agree to pay the prices for the Products as set out in the KITE Business Service from time to time. Although we endeavour to keep prices as accurate and up to date as possible sometimes errors do occur. If a price error has occurred we will inform you and the relevant End Customer of this at the time of Order.

    Using our payment system to process your End Customer or client’s Product orders

  2. In the event that you have elected to use our payment processing service in order to process the payment for Products ordered by End Customers, whereby we will be the merchant of record for the relevant transaction:
    1. you shall provide valid PayPal, credit card, debit card or other relevant payment details prior to being permitted to integrate the payment processing system into your own operations;
    2. you will be notified of the designated cumulative fee value of Orders Fulfilled during a calendar month period (the “Monthly Orders”) on a monthly basis. Once we have notified you of the Monthly Orders, we will make a payment to the account details provided as per Clause 2.1 for the sum of the Monthly Orders less the Wholesale Price of the relevant Products.
  3. In the event that you have elected to use your own payment processing service in order to process the payment for Products ordered by End Customers whereby you will be merchant of record for the relevant transaction:
    1. you shall provide valid PayPal, credit card, debit card or other relevant payment details prior to being permitted to integrate the payment processing system into your own operations;
    2. Subject to Clause 10.3.3, if the cumulative value (in US dollars) of the Orders Fulfilled in an Order Cap Period is equal to (or, if applicable, greater than) the Order Cap, you hereby permit us to take payment (and we shall have the right to take payment) from the account details provided by you (as noted in Clause 10.3.1) of the cumulative value of the Wholesale Price for Orders Fulfilled in the Order Cap Period. We shall issue an invoice to you for this amount, noting any VAT where applicable (via the dashboard made available to you via the Kite API or KITE Business Service Account).
    3. after seven (7) days from the commencement of an Order Cap Period (“Payment Period”) if the cumulative value (in US dollars) of the Orders Fulfilled is less than the Order Cap then you hereby permit us to take payment (and we shall have the right to take payment) from the account details provided by you (as noted in Clause10.3.1) of the cumulative value of the Wholesale Price for Orders Fulfilled in the Payment Period. We shall issue an invoice to you for this amount, noting any VAT where applicable (via the dashboard made available to you via the Kite API or KITE Business Service Account).
    4. We shall provide you with a notification of the cumulative fee value of Products for which Orders have been Fulfilled during any given seven (7) day period.
    5. Each Party shall be liable for taxes to the extent they fall due to that party under the applicable law.
  4. If payment is taken by us under Clause 10.3.2 Clause 10.3.3 then at the point on which payment has been received by us the cumulative value of Orders Fulfilled for the purpose of calculating the Order Cap and Order Cap Period shall be deemed to be nil.
  5. If you request Additional Services then we shall have the right to charge you for these in accordance with the Additional Charges. We shall provide you with a schedule following the form of Schedule 1. Where it is necessary to negotiate the details of the Additional Services or Additional Charges then the parties shall conduct such negotiations in good faith.
  1. We (or our licensors) are the owner of all Intellectual Property Rights in our KITE Business Service, and in the material published on it (including the KITE APIs), other than the User Content
  2. In the event that you wish to access the KITE APIs for use of the KITE Business Service, we hereby grant you a revocable, non-exclusive, non-transferable, world-wide, royalty-free licence to use the KITE APIs whilst these Terms are in effect solely for the purposes of integrating your business website or application with ours in order to enable you or your End Customers or clients to place Orders for Products using the KITE Business Service.
  3. Except for the User Content submitted by you or your End Customers or clients, you may not copy, download, use, redesign, reconfigure, or retransmit anything from the KITE Business Service without our express prior written consent. Any use of such proprietary material, other than as permitted therein, is expressly prohibited without the prior permission of us and/or the relevant right holder.
  4. Except as permitted under these Terms, you must not use any part of the content on our website or made available through the KITE Business Service for commercial purposes without obtaining a licence to do so from our licensors or us.
  5. If you print off, copy or download any part of our KITE Business Service in breach of these Terms, your right to use our KITE Business Service will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.
  6. The service marks and trade marks of us, including without limitation OCEAN LABS, Ps Print Studio, Ps Postcards, KITE, myHuggle and Huggleup are trade marks owned by us. Any other trade marks, service marks, logos and/or trade names appearing on the KITE Business Service are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the respective owner.
  1. Except in relation to the purchase of Products, your use of the KITE Business Service is entirely at your own risk and is provided on an “as is” “as available” and “with all faults” basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and non-infringement.
  2. Except as expressly stated in these Terms, to the fullest extent permissible by law, neither us nor any of our directors, employees, managers, officers or agents make any representations or warranties of any kind whatsoever, express or implied, as to: (a) the KITE Business Service; (b) User Content; or (c) security associated with the transmission of information to us or via the KITE Business Service or (d) any Products you may purchase through the KITE Business Service. In particular, we will not be responsible for ensuring that the Products are suitable for your End Customer’s purposes.
  3. We do not represent or warrant that the KITE Business Service will be error-free or uninterrupted; that defects will be corrected; or that the KITE Business Service or the server that makes the KITE Business Service available is free from any harmful components, including, without limitation, viruses.  We do not warrant that your use of the KITE Business Service is lawful in any particular jurisdiction.
  4. To the fullest extent permissible by law, we disclaim any responsibility or liability to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these terms or any contract for (a) any loss of profits, sales, business, or revenue; (b) loss or corruption of data, information or software; (c) loss of business opportunity; (d) loss of anticipated savings; (e) loss of goodwill; or (f) any indirect or consequential loss.
  5. Notwithstanding the above, in no event will our liability to you for all damages, losses or causes of action exceed the greater of £100.00 or the price of the Products to which the liability relates.
  6. Nothing in these Terms excludes or limits our liability for death or personal injury arising from our negligence, or our fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law or the law of the jurisdiction in which you use the Kite Business Services.
  7. You agree to indemnify and hold us harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable legal fees and costs, arising out of or in any way connected with your breach or alleged breach of these Terms (including any such breach or alleged breach by your customers or clients). You will cooperate as fully required by us in the defence of any claim subject to indemnification by you. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.

Processing requirements

  1. KITE Business Service data collection: We shall collect Personal Data through the operation of the KITE Business Service. For the purposes of Data Protection Laws, you shall be the ‘Data Controller’ and we shall be a ‘Data Processor’ (entitled to Process the Personal Data collected on your behalf, in accordance with these Terms incorporating our Privacy Policy). We collect the Personal Data on your behalf and shall only Process that Personal Data in accordance with this Clause 13 and in order to comply with our obligations under these Terms.
  2. Data collection: We shall collect information from the End Customers regarding their Orders, including their name, address, telephone number, email address and personal photos, which may be placed on Products  and / or Packaging for the purposes of providing the End Customer with the Products and Fulfilling the Order from the End Customer.
  3. Kite shall only process Your Personal Data in accordance with the documented instructions given from time to time by the You, including with regard to transfers, unless required to do otherwise by applicable law. In which event, Kite shall inform the You of the legal requirement before processing Your Personal Data other than in accordance with Your instructions, unless that same law prohibits Kite from doing so on important grounds of public interest;
  4. Where You are also procuring the Services for one or more Affiliates, You confirm that You are authorized to communicate any instruction or other requirements on behalf of such Affiliates to the Supplier in respect of the Services.
  5. If the You are in breach of its obligations under the Data Protection Legislation due to an act or omission of Kite, Kite shall not be liable for such breach where its act or omission arose from the Your instructions.
  6. Upon termination or expiry of the Terms, Kite shall, at Your request, promptly delete or return all Personal Data and delete the copies thereof (unless applicable law requires the storage of such Personal Data) and shall confirm to You in writing that it has done so.  This provision is without prejudice to any provisions in the Terms relating to how long Kite may retain data after the Terms terminate.

    Security

  7. Kite warrants and undertakes in respect of all Your Personal Data that it shall:
    • implement appropriate technical and organisational measures to protect Your  Personal Data against unauthorised or unlawful processing against accidental loss, destruction, damage, alteration or disclosure;
    • without prejudice to any general obligations relating to confidentiality in the Agreement, ensure that its personnel are subject to binding obligations of confidentiality with respect to Your Personal Data; and
    • promptly, and without delay, notify You in writing of any actual, alleged, or potential unauthorised disclosure, loss, destruction, compromise, damage, alteration, or theft of Your Personal Data.
  8. You shall promptly and without delay notify Kite in writing if you become aware of any breach of security in respect of the Services or its use of the Services.

    Assistance

  9. Taking into account the nature and scope of the Services provided by Kite, Kite shall, to the extent possible, provide such assistance as You may reasonably require to comply with Your obligations as a data controller, including in relation to data security, data breach notification, data protection impact assessment, prior consultation with data protection authorities, any enquiry, notice or investigation received from a data protection authority, and the fulfilment of data subjects’ rights.
  10. Kite shall make available to You all information reasonably necessary to demonstrate its compliance with the obligations set out in this Clause, and allow for and co-operate with any reasonable audits, including physical inspections of the vendor’s premises, required by You.   You shall be limited to conducting one such audit or inspection per year, save where the You reasonably believe that Kite may have breached the provisions of these Data Processing clauses.  Any such audit or inspection shall conducted on reasonable notice during normal business hours.  Kite may require that the people conducting the audit sign undertakings of confidentiality.

    Sub-processing

  11. Kite shall not authorize any third party or Sub-Processor to process Personal Data other than with Your prior written consent, which shall be deemed provided in respect of any Sub-Processors engaged by Kite in accordance with the Terms prior to the Effective Date.
  12. You hereby consent to the appointment of third party Sub-Processors provided that You are: (i) informed of the identity of the Sub-Processor and is given reasonable notice of any changes concerning the addition or replacement of other Sub-Processors; (ii) are given the opportunity to object to such changes where it considers that such Sub-Processors do not provide sufficient guarantees under Data Protection Legislation in which event Kite shall use reasonable endeavours to address Your concerns.
  13. Where You are a processor with respect to Personal Data, You shall impose obligations on Your Sub-Processors that are the same as or equivalent to those set out in this Clause 13 by way of written contract, and shall remain liable to You for any failure by a Sub-Processor to fulfil its obligations in relation to the Personal Data.

    Data Transfers

  14. Kite shall not process Personal Data outside the European Economic Area (EEA), without Your express prior written consent. You hereby consent to your Personal Data to be processed by Kite and its Sub-processors outside the EEA to the extent that such processing was taking place prior to the Effective Date and was permitted under the Agreement.

    Liability

  15. Nothing in this Clause 13 shall exclude or limit or attempt to exclude or limit either party’s liability for anything that cannot be excluded or limited by applicable law.
  16. Kite’s total liability to You and Your Affiliates in respect of all losses arising under or in connection with Personal Data over the term of the Terms, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the greater of:
    • 100% of the fees payable by You in a calendar year;
    • The value of the overall limit on liability in the Terms.
  17. In the event of any conflict between the limits on liability set out in the Terms and the limits on liability set out in this Clause 13 in respect of Personal Data, the limits set out in this Clause 13 shall prevail.
  18. Analytical Data: We shall be entitled to use all data collected in relation to the Orders, Fulfilment of Orders, sale of Products, operation of the KITE Business Services, and/or any other matter connected to the provision of our services, including to pull together trends and learnings to improve the overall services for all our partners, data relating to the statistics of sales and generic information about users / End Customers, such as where an End Customer is located, how many times End Customers access the KITE Business Service and the general performance of the APIs or SDKs comprising the KITE Business Service (the “Analytical Data”).  We agree not to include any Personal Data within the Analytical Data and is therefore freely available to use such Analytical Data, in its discretion, including (but not limited to) sharing aggregated anonymised data and any Analytical Data with third parties.
  1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Event Outside Our Control. An ‘Event Outside Our Control’ is defined below in Clause 14.2
  2. An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
  3. If an Event Outside Our Control takes place that affects the performance of our obligations under a Contract:
    1. we will contact you as soon as reasonably possible to notify you; and
    2. our obligations under a Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Products to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
  1. Links (such as hyperlinks) from our KITE Business Service to other websites do not constitute the endorsement by us of those sites or their content. We do not control any such sites, and is not responsible for their content. The existence of links on the website to such websites (including without limitation external websites that are framed by our KITE Business Service as well as any advertisements displayed) does not mean that we endorse any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
  2. The use of any website controlled, owned or operated by third parties including our suppliers is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk.
  1. Without prejudice to any other rights that might be available to us, breach by you of these Terms may, in our sole discretion, upon us giving written notice to you result in immediate suspension or termination of your KITE Business Service Account, notwithstanding the provisions of Clause 16.3.
  2. You can deactivate your KITE Business Service Account by notifying us by email to hello@kite.ly, Subject: Account Deactivation. If your account is deactivated, User Content submitted by you or your customers or clients, and all other data associated with your use of the KITE Business Service will no longer be accessible through your account, but those materials and data may persist and appear within the KITE Business Service.
  3. We may (without prejudice to any other rights) forthwith terminate these Terms and your right to the use the KITE Business Service immediately by written notice to you:
    1. if you commit a material breach of any provision of these Terms and such breach is incapable of remedy, or you fail to remedy such breach (where capable of remedy) within fourteen (14) days of receipt of a notice from us specifying the breach; or
    2. if you become insolvent, compound with your creditors or shall have distress or execution levied upon you property or are wound up or go into liquidation (except for the purposes of a bona fide reconstruction) or shall have a receiver, administrative receiver, or administrator appointed of the whole or any part of your assets or shall suffer the appointment of any similar person under the law of its domicile, or a floating charge is placed over the assets of you.
  4. Upon termination or deactivation of your KITE Business Service Account:
    1. all licences and other rights granted to you in these Terms will immediately cease;
    2. any charges due under these Terms shall become payable immediately. This includes any payment that may be due to us under Clause 10;
    3. all accrued rights and remedies shall remain unaffected; and
    4. store data in our possession in relation to your KITE Business Service Account or the KITE Business Service as we deem to be acceptable, both in relation to method of storage and length of storage. You may request that we store such data in a particular format or for a particular length of time. We may accept or reject such a request at our absolute discretion and we reserve the right to charge you separately for fulfilling any request(s).
  5. We reserve the right in our sole discretion to (i) continue with or (ii) cancel and refund any sums relating to, unfulfilled Orders in effect at the time of termination or deactivation, notwithstanding Clause 16.4 above.
  1. We may transfer our rights and obligations under these Terms to another organisation, and we will always notify you through this page, but this will not affect your rights or our obligations under these Terms. You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
  2. These Terms and any document expressly referred to in them constitute the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
  3. You acknowledge that in accepting these Terms and/or entering into any Contract you did not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or any document expressly referred to in them.
  4. The contract under these Terms is between you and us. No other person shall have any rights to enforce any of its terms.
  5. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
  6. If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
  7. These Terms are governed by English law. You and we both agree to submit to the exclusive jurisdiction of the English courts to settle any dispute or claim arising out of or in connection with these Terms or a Contract or its subject matter or formation (including non-contractual disputes or claims).