Last Updated Date: 31 July 2024

PIHL Limited T/A Kway.ai ("Kway.ai", "We", "Us") operates an AI-as-a-service management platform, including all associated features, functionality and tools offered thereon and as updated over time (together, the "Platform") that enables managed service providers to create and manage AI-powered applications, and provide related managed services, to its customers.

You ("End Customer," "You," or "Your") are acquiring subscription access to the Platform directly from a third party that is authorized to sell such subscriptions (each an "MSP") pursuant to a separate agreement between such MSP and Kway.ai ("MSP Customer Agreement") or You are an MSP that is using the Platform for internal, not-for-resale purposes. In connection with your use of the Platform, an MSP may provide you with certain managed services on the Platform ("MSP Services").‍

In addition to any agreement You have with an MSP ("MSP Terms") regarding the MSP Services, these End Customer Terms contain the terms and conditions that govern Your access to and use of the Platform. You expressly acknowledge and agree that these End Customer Terms constitute the entire agreement and supersede any and all prior agreements between You and Kway.ai with regard to Your use and access to the Platform.‍

By accepting these End Customer Terms, either by clicking "I Accept" upon your access to the Platform, or accessing or using the Platform, or authorizing or permitting any Authorized User to access or use the Platform or an MSP Service, End Customer agrees to be bound by these End Customer Terms as of the date of such acceptance or the date of access to or use of the Platform. If You are entering into these End Customer Terms on behalf of a company, organization or another legal entity (an "Entity"), You are agreeing to these End Customer Terms for that Entity and representing to Kway.ai that You have the authority to bind such Entity to these End Customer Terms, in which case the terms "End Customer," "You," or "Your" herein refers to such Entity. If You do not have such authority, or if You do not agree with these End Customer Terms, You must not use or authorize any use of the Platform. End Customer and Kway.ai shall each be referred to as a "Party" and collectively referred to as the "Parties" for purposes of these End Customer Terms.

1. DEFINITIONS.

Capitalized terms used in these End Customer Terms have the following meanings or as otherwise defined in these End Customer Terms:

"Account" means any accounts or instances created by or on behalf of End Customer, Authorized Users on the Platform.

"Authorized User" means each of End Customer’s employees, agents, and independent contractors who are authorized to access the Platform pursuant to End Customer’s rights under these End Customer Terms.

"Documentation" means text or graphical materials, whether in print or electronic form, that describe the features, functions and use of the Platform, which may be provided to You by an MSP or Kway.ai.

"End Customer Content" means any and all content submitted by You or an Authorized User, or by an MSP on Your behalf, in connection with or pursuant to your use of the Platform (including any Input or Output), including any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials.

"Kway.ai Marks" means any trademarks, service marks, service or trade names, taglines, logos or other designations of Kway.ai, whether registered or unregistered.

"Intellectual Property Rights" means any and all of a Party’s patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.

"Usage Data" means general performance and usage data generated or collected through or in connection with End Customers’ use of the Platform (such as technical logs, account and login data, processed volumes).‍

2. ACCESS TO THE SERVICES

2.1. Service. Kway.ai will make the Platform available pursuant to these End Customer Terms. Kway.ai reserves the right to monitor and periodically audit End Customer’s use of the Platform to ensure that End Customer’s use complies with these End Customer Terms and applicable law. Should Kway.ai discover that End Customer’s use of the Platform violates these End Customer Terms or applicable law, or MSP informs us that Your use of the Platform conflicts with the MSP Terms, Kway.ai reserves the right to suspend or terminate End Customer’s access to the Platform, and Kway.ai shall not be obligated to provide End Customer with any refunds of amounts paid by End Customer to Kway.ai or an MSP. End Customer acknowledges that Kway.ai may modify the features and functionality of the Platform with or without notice to You.

2.2. Support. Kway.ai will not provide End Customer with any customer support for the MSP Services or with respect to Your access to the Platform. All support services and related terms shall be between the MSP and End Customer, as set forth in the MSP Terms.

2.3. MSP Services. MSP, and not Kway.ai, is the provider of the MSP Services. You acknowledge and agree that MSP is solely responsible for the provision of the MSP Services to You in accordance with the MSP Terms. You acknowledge that we do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of the MSP Services or any actions of any MSP. Kway.ai makes no representations about the suitability, reliability, timeliness or accuracy with respect to the MSP Services. You acknowledge and agree that Your right to access the Platform is also subject to the MSP Terms. You acknowledge that MSP may remove, suspend, or terminate your access to the Platform, or may request that Kway.ai removes, suspends or terminates your access to the Platform, pursuant to the MSP Terms. Kway.ai is not responsible for MSP’s conduct or for resolving disputes between You and the MSP regarding the MSP Terms.

3. USE OF THE SERVICES

3.1. Compliance. End Customer is responsible for compliance with the provisions of these End Customer Terms by Authorized Users and for any and all activities that occur under an Account, which Kway.ai may verify from time to time. Without limiting the foregoing, End Customer will ensure that its use of the Platform, and its use of applications made available through the MSP Services, are compliant with all applicable laws and regulations and that End Customer has provided or will provide all required privacy notices, and has procured or will procure any all required consents or permissions, from Authorized Users and any third parties as may be required under applicable law or otherwise in connection with your use of the Platform and for Kway.ai to process data as contemplated in these End Customer Terms.

3.2. Restrictions. End Customer shall not, and shall procure that its Authorized Users shall not, (a) copy or duplicate the Platform; (b) decompile, disassemble, reverse engineer, or attempt to obtain or perceive the source code from which any component of the software is compiled or interpreted, and End Customer acknowledges that nothing in these End Customer Terms will be construed to grant End Customer any right to obtain or use any source code; (c) modify the Platform, the Documentation, or the Kway.ai Marks or create any derivative product from any of the foregoing; (d) use, access, assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey the Platform, or pledge as security or otherwise encumber End Customer’s rights under the licenses granted herein, except as expressly permitted in these End Customer Terms; or (e) upload End Customer Content that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, pornographic, offensive, or profane; (B) infringes or misappropriates any third party’s Intellectual Property Rights or other proprietary rights; (C) contains any viruses, worms or other malicious computer programming codes that may damage the Platform; (D) contains any personal information, such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers; (E) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Kway.ai’s prior written consent; or (F) violates any applicable third-party services terms. Kway.ai reserves the right to suspend End Customer’s and its Authorized Users’ access to the Platform for any failure, or suspected failure, to comply with the foregoing conditions.

3.3. Internal Business Purposes Only. Unless otherwise authorized in writing by Kway.ai, End Customer may not use the Platform in any manner where End Customer acts as a service bureau or provides any outsourced business process services on behalf of more any third party. End Customer agrees not to license, sublicense, sell, outsource, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or resell the Platform Services to any third party, other than Authorized Users in furtherance of End Customer’s internal business purposes as expressly permitted by these End Customer Terms and the MSP Terms.

3.4. Supplemental Terms. Your use of, and participation in, certain features and functionality of the Platform may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will

be presented to You for Your acceptance when You sign up to use the supplemental features or functionality on the Platform. If these End Customer Terms are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental features or functionality.‍

4. TERMINATION

4.1. Termination for Failure to Pay. Kway.ai reserves the right to suspend or terminate Your Account or subscription to or right to access the Platform, and remove and discard any End Customer Content if: (a) Kway.ai is notified by MSP of Your failure to pay amounts due to MSP; (b) MSP fails to pay any amounts due to Kway.ai pursuant to the MSP Customer Agreement with respect to Your access to an MSP Service; or (c) if You or an Authorized User breach these End Customer Terms. You consent to these suspension and termination rights and acknowledge and agree that Kway.ai shall have no liability to You of any kind with respect to any such suspension or termination. End Customer’s sole recourse with respect to any such suspension or termination shall be against MSP. Following the termination or cancellation of End Customer’s access to the Platform and/or Account, Kway.ai reserves the right to delete all End Customer Content in the normal course of its operations.

4.2. Termination for Cause. End Customer may terminate these End Customer Terms for cause if Kway.ai breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from End Customer. Kway.ai may immediately terminate these End Customer Terms for cause without notice if End Customer breaches any provision of these End Customer Terms or if provision of the Platform violate applicable law, regulation or court order. End Customer agrees that all terminations for cause are made in Kway.ai’s sole discretion and that Kway.ai shall not be liable to End Customer or any third party for any such termination.

4.3. Survival. Sections 1, 3.2, 4.3, 4.4 and 5 – 12 shall survive termination of these End Customer Terms with respect to use of the Platform by End Customer or Authorized Users. Termination of these End Customer Terms shall not limit a Party’s liability for obligations accrued as of or prior to termination or for any breach of these End Customer Terms.

4.4. Export of Service Data. For fifteen (15) days after the effective date of termination, expiration or migration of the Account, as applicable, Kway.ai will make End Customer Content available on the Platform to End Customer on a limited basis solely for export or download, except for End Customer Content which has been deleted in accordance with the Documentation, was created and/or used in violation of this Agreement, or unless prohibited by law or legal order. Thereafter, Kway.ai will have no obligation to maintain or provide any End Customer Content and Kway.ai may delete End Customer Content in accordance with Kway.ai’s internal policies.‍

5. CONFIDENTIAL INFORMATION

5.1. Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). Confidential Information shall include any information that: (a) is in tangible form and is marked as “confidential” or “proprietary” or with a similar legend; (b) is disclosed orally as confidential at the time of disclosure; or (c) the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party.

5.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these End Customer Terms, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of these End Customer Terms and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. You acknowledge and agree that Kway.ai may share Your Confidential Information with Your MSP in connection with Kway.ai’s operation of the Platform and performance of services to the MSP.

5.3. Exceptions. The Receiving Party’s obligations under this Section will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (x) approved in writing by the Disclosing Party, (y) necessary for the Receiving Party to enforce its rights under these End Customer Terms in connection with a legal proceeding; or (z) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

5.4. Return of Confidential Information. The Receiving Party will return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of these End Customer Terms, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section.‍

6. AI SERVICES AND END CUSTOMER CONTENT

6.2. Types of Content. Subject to Your compliance with these End Customer Terms, You may share or upload End Customer Content, directly or indirectly through an MSP, including by way of prompts, comments, questions, and other input to the Platform (collectively, "Input"). You, and not Kway.ai, are entirely responsible for all Input that You upload, share, post, email, transmit, query or otherwise make available through or to the Platform. When You make available any Input on or to the Platform, You represent that You own and/or have sufficient rights to use such Input in connection with the Platform and the applicable MSP Service, including to grant the license set forth in Section 6.4. In response to any prompts, comments, questions, and other Input that You provide to the Platform, certain services, such as the AI Services, may generate new content based on such Input ("Output"). You acknowledge that the Outputs are based on Your Inputs, and are generated by AI Services, and that Kway.ai has no control over any such Inputs or Outputs. Accordingly, all Outputs are provided "as is" and with "all faults", and Kway.ai makes no representations or warranties of any kind or nature with respect to any Inputs or Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. You are solely responsible for Your use of Your Outputs created through your use of the Platform, and You assume all risks associated with Your use of any Outputs, including any potential copyright infringement claims from third parties or any disclosure of Your Outputs that personally identifies You or any third party. You are solely responsible for reviewing any Output prior to its use and exercising Your own judgement as to its suitability for use.

6.3. Ownership of Content. Kway.ai does not claim ownership of any End Customer Content, including any Inputs or Outputs generated by an AI Service. Subject to Section 6.4, and the applicable AI Services terms, as between the Kway.ai and You, You are the owner of all right, title and interest in End Customer Content. The MSP Terms govern Your Agreement with the MSP regarding ownership and treatment of the End Customer Content. Given the nature of artificial intelligence which powers the AI Services, You acknowledge that: (a) Output may not be unique across users and the AI Services may generate the same or similar output for another user under similar terms and You do not have any right, title or interest in or to any output provided to other users, regardless of the level or degree of similarity with the Outputs; (b) Kway.ai does not represent or warrant that the Outputs are protectible by any Intellectual Property Rights under applicable law; and (c) Kway.ai does not guarantee that You will exclusively own or have all necessary rights to the Output for Your intended purposes, or that the Output does not incorporate, infringe or misappropriate the intellectual property or proprietary rights of any third party.

6.4. License to Your Content. You acknowledge that the Platform utilizes certain artificial intelligence and machine learning algorithms that can be trained to recognize and search for certain patterns (including natural language patterns), information, objects and events, and that such recognition is developed over time based on Your use of the Platform and End Customer Content. Accordingly, You grant Kway.ai a non -exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display and derive revenue or other remuneration from End Customer Content (in whole or in part) for the purposes of operating and providing the Platform (including after You cease use of the Platform or terminate these End Customer Terms). Without limiting the foregoing, You acknowledge that End Customer Content may be used by the Kway.ai, or third-party providers of the AI Services, to train, develop, enhance, evolve and improve the Platform and associated services and the underlying artificial intelligence models, algorithms and related technology, products and services (including for labeling, classification, content moderation and model training purposes), as well as for marketing and promotional purposes.

6.5. Usage Data. Kway.ai may generate Usage Data to operate, improve, analyze, and support the Platform for benchmarking and reporting and for Kway.ai’s other lawful business purposes. Without limiting the foregoing, Kway.ai may collect, analyze and use the questions and queries submitted by End Customers to the AI Services for the purposes of training and developing its models and to improve the Platform.

6.6. Feedback. Any feedback provided by End Customer or its Authorized Users, directly or indirectly, to Kway.ai concerning the features, functionality and performance of the Platform such as, without limitation, potential errors and improvements (“Feedback”) may be used by Kway.ai to improve or enhance the Platform or other products and, accordingly, End Customer hereby grants to Kway.ai a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit such Feedback without restriction.

6.7. Third-Party Service Providers. Kway.ai may use third-party service providers that are utilized by the Kway.ai to assist in making available the Platform to End Customer. Any third- party service providers utilized by the Kway.ai will be subject to confidentiality obligations which are substantially similar to the confidentiality terms herein.‍

7. THIRD PARTY SERVICES

7.1. Open Source Software. Certain items of software may be provided to You with the Platform that are subject to "open source" or "free software" licenses ("Open Source Software"). Open Source Software is owned by third parties. To the extent any Open Source Software is provided to You, such Open Source Software is licensed under the terms of the end- user license that accompanies such Open Source Software. Nothing in this Agreement limits Your rights under, or grants You rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Kway.ai makes such Open Source Software, and Kway.ai’s modifications to that Open Source Software, available by written request.

7.2. AI Services. Kway.ai has no control over, and assumes no responsibility for, the information, accuracy, privacy policies, services, or practices of or opinions expressed in any AI Services. All AI Services are provided "as is" and with "all faults", and Kway.ai makes no representations or warranties of any kind or nature with respect to any AI Service, or their output, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability.

7.3. Third-Party Service Accounts. If permitted on the Platform, End Customer may be able to access AI Services under Your account with the provider of such AI Services (each, a "Third- Party Account"). If You access such AI Services through Your Third-Party Account, You: (a) represents that You are entitled to grant Kway.ai access to Your Third-Party Account without breach by You of any of the terms and conditions that govern Your use of such AI Services; (b) understand that Kway.ai may access, make available and store (if applicable) any data or content accessible through the Platform that is stored or available in connection with the Third-Party Account; (c) acknowledge and agree that You are responsible for all activity under the Third- Party Account and any content derived therefrom; and (d) You are responsible for all payment obligations associated with the Third-Party Account and that Kway.ai is not responsible for any liability resulting from Your failure to comply with its obligations under the Third-Party Account.‍

8. INTELLECTUAL PROPERTY RIGHTS

The Platform, the Documentation, Kway.ai Marks, and any improvements and enhancements thereto, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Kway.ai and its suppliers. All rights not expressly granted to

End Customer in these End Customer Terms are reserved by Kway.ai and its suppliers. The rights granted to End Customer and Authorized Users to use the Platform under these End Customer Terms do not convey any additional rights in the Platform or in any Intellectual Property Rights of Kway.ai associated therewith. Subject only to limited rights to access and use the Platform as expressly stated herein, all rights, title and interest in and to the Platform and all hardware, software and other components of or used to provide the Platform, including all related Intellectual Property Rights, will remain with Kway.ai and belong exclusively to Kway.ai.‍

9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

9.1. End Customer Warranties. End Customer represents, warrants, and covenants that: (a) it has procured all applicable rights to grant to Kway.ai the licenses granted herein and procured all consents and provide all required notices, in order to provide the End Customer Content to Kway.ai as contemplated herein and to use the MSP Services; and (b) the End Customer Content does not and will not: (i) infringe or misappropriate any third party’s Intellectual Property Rights; (ii) be deceptive, unlawful or violate any applicable law; (iii) contain any viruses, worms or other malicious computer programming codes that may damage the Platform; and (iv) otherwise violate the rights of a third party.

9.2. Disclaimers. THE PLATFORM, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND KWAY.AI EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PLATFORM, THE DOCUMENTATION, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. END CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES. END CUSTOMER ACKNOWLEDGES AND AGREES THAT KWAY.AI IS NOT LIABLE, AND END CUSTOMER AGREES NOT TO SEEK TO HOLD KWAY.AI LIABLE, FOR THE THIRD-PARTY SERVICES, INCLUDING OPERATORS OF THIRD- PARTY SERVICES SUCH AS THE AI SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH END CUSTOMER. KWAY.AI MAKES NO WARRANTY REGARDING THE QUALITY OF THE THIRD-PARTY SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF SUCH THIRD-PARTY SERVICES.

9.3. MSP Services. YOU ACKNOWLEDGE AND AGREE THAT KWAY.AI IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD KWAY.AI LIABLE, FOR THE CONDUCT OF ANY MSP, AND THAT THE RISK OF INJURY FROM YOUR MSP RESTS ENTIRELY WITH YOU. KWAY.AI MAKES NO WARRANTY REGARDING THE QUALITY OF ANY MSP SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE MSP SERVICES.‍

10. INDEMNIFICATION

End Customer shall indemnify and hold Kway.ai, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Kway.ai Party” and collectively, the “Kway.ai Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) End Customer Content; (b) Your use of, or inability to use, the Platform or the MSP Services; (c) Your violation of these End Customer Terms; (d) your violation of any rights of another party, including any user; or (e) Your violation of any applicable laws, rules or regulations. Kway.ai reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event you will fully cooperate with Kway.ai in asserting any available defenses. This provision does not require you to indemnify any of the Kway.ai Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Platform provided hereunder. You agree that the provisions in this section will survive any termination of your Account or access to the Platform or these End Customer Terms.‍

11. LIMITATION OF LIABILITY.

TO THE EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT WILL KWAY.AI BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THESE END CUSTOMER TERMS, EVEN IF END CUSTOMER HAS BEEN ADVISED OF SUCH DAMAGES; AND (B) KWAY.AI’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE END CUSTOMER TERMS AND THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (I) $100, OR (II) IF APPLICABLE, THE STATUTORY REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR A PARTY’S OWN FRAUD, WILLFUL INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR VIOLATION OF LAW, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO END CUSTOMER. IN THESE JURISDICTIONS, KWAY.AI LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.‍

12. GENERAL

12.1. Compliance with Laws. End Customer will at all times comply with applicable laws and regulations and refrain from any unethical or any other conduct that tends to damage the reputation of Kway.ai or the Platform.

12.2. Governing Law; Forum. These End Customer Terms shall be governed by and construed in accordance with the laws of Ireland. The parties hereby consent and agree to the exclusive jurisdiction of the courts of Ireland for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to these End Customer Terms.

12.3. Export. End Customer acknowledges and agrees that the Platform is subject to the export control laws and regulations of the United States and other applicable jurisdictions, including but not limited to the European Union. End Customer shall comply with these laws and regulations and shall not, without prior authorization from the relevant government authorities, export, re-export, or transfer access to the Platform, either directly or indirectly, to any country or person in violation of such laws and regulations.

12.5. Remedies. The parties’ rights and remedies under this Agreement are cumulative. End Customer acknowledges that any actual or threatened breach of Section 3.2, or any other infringement or violation of Kway.ai’s Intellectual Property Rights will constitute immediate, irreparable harm to Kway.ai for which monetary damages would be an inadequate remedy. In such case, Kway.ai is entitled to immediate injunctive relief without the requirement of posting bond. If any legal action is brought to enforce these End Customer Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

12.6. Assignment. These End Customer Terms may not be assigned, subcontracted, delegated or otherwise transferred by End Customer without Kway.ai’s prior written consent. Kway.ai may, without End Customer’s consent, freely assign, subcontract and transfer these End Customer Terms, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of these End Customer Terms will be binding upon the parties and their respective successors and permitted assigns.

12.8. Independent Contractors. End Customer’s relationship to Kway.ai is that of an independent contractor, and neither party is an agent or partner of the other. End Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Kway.ai.

12.9. Notices. All notices required under these End Customer Terms (other than routine operational communications) must be in writing and delivered: (a) in person; (b) by nationally recognized overnight delivery service; (c) by certified mail (requiring signature) in the case of the End Customer to the address set forth on End Customer’s account on the Platform, or in the case of Kway.ai, the address provided on the Platform; or (d) by email, in the case of the End Customer to the email address set forth on End Customer’s Account on the Platform, or in the case of Kway.ai, the email address provided on the Platform. Notices shall be effective upon: (i) actual delivery to the other party, if delivered in person, or by national overnight courier or email; or (ii) five (5) business days after being mailed via postal service, postage prepaid.

12.10. Entire Agreement. These End Customer Terms constitute the final, complete and exclusive agreement between Kway.ai and End Customer with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. These End Customer Terms are subject to change by Kway.ai in its sole discretion at any time.

12.11. Government End Customer. If End Customer is an Irish government department or agency or contracting on behalf of such department or agency, or is a department or agency of a European Union member state or contracting on behalf of such department or agency, the Platform is supplied in accordance with Irish and European Union legislation, including but not limited to the Sale of Goods and Supply of Services Act 1980 and the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003. End Customer's license to access the Platform are limited to those rights as provided under the terms and conditions of this Agreement. 

12.12. Federal Government End Customer. If End Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Platform is a “Commercial Product” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, End Customer’s license to access the Platform are limited to those rights as provided under the terms and conditions of this Agreement.