Kimonix Terms of Use

Kimonix Ecommerce Ltd. ("Kimonix", "our", "we" or "us") offers to its customers ("Customers" or "you") one or more online Software-as-a-Service applications for ecommerce merchandising, personalization and product discovery, which synchronize Customer's catalog, sales, inventory and store data together with insights into the behavior and preferences of Customer's shoppers, in order to build, order, vary, personalize, test, measure and present Customer's product assortment across Customer's storefront and marketing channels (each an "Application" and collectively the "Solution") and together with the related services, except if specifically, otherwise designated, shall be referred to herein as the "Services". The terms "Users" or "you" refer to: (I) Customer; (II) Customer's first user of the Solution; and (III) Customer's authorized personnel who access and/or authorized to use or access the Services under Customer's account (the "End User(s)").

Each Application is provided by Kimonix Ecommerce Ltd. and is installed separately. These Terms apply to each Application that Customer installs or uses, whether installed separately or together, and each Application is subject to its own Plan and Fees as presented at installation. Installing or cancelling one Application does not install, cancel or otherwise affect any other Application, and uninstalling one Application does not terminate Customer's subscription to any other. Where Customer uses more than one Application, configuration and Customer Data may be shared between them in order to provide the Services.

"Shoppers" means visitors to and customers of Customer's storefront who interact with, or whose behavior is processed by, the Solution. Shoppers are not Users and are not party to these Terms. The relationship between Customer and its Shoppers is governed by Customer's own terms of service and privacy policy, and Customer is solely responsible for making the disclosures and obtaining any consents required for the Solution to operate on Customer's storefront, to process Shopper behavior, and to interact with Shoppers.

By entering to, connecting to, accessing or using the Services, you acknowledge that you have read and understood these Terms of Use (the "Terms of Use"), including our Privacy Policy located at https://www.kimonix.com/privacy-policy (the "Privacy Policy", collectively with these Terms of Use, the "Terms") and you agree to be bound by the Terms and to comply with all laws and regulations that apply to your use of the Services and you agree that these Terms constitute a binding and enforceable legal contract between Kimonix and you.

ATTENTION - PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SOLUTION AND SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT ENTER, CONNECT TO, ACCESS OR USE THE SERVICES AND/OR SOLUTION IN ANY MANNER.

IF YOU ARE THE FIRST PERSON TO USE OR ACCESS THE SERVICES ON BEHALF OF YOUR ORGANIZATION, YOU AGREE THAT YOUR ORGANIZATION IS DEEMED A CUSTOMER AND YOU SHALL BE DEEMED A USER FOR THE PURPOSE OF THESE TERMS. USER HEREBY REPRESENT, AGREE AND ACKNOWLEDGES THAT (I) HE/SHE HAS BEEN DESIGNATED BY CUSTOMER AND HAS FULL LEGAL AUTHORITY TO USE AND REGISTER TO THE SERVICES INCLUDING ON BEHALF OF THE CUSTOMER AND TO BIND CUSTOMER TO THESE TERMS; AND (II) THESE TERMS ALSO CONSTITUTE A BINDING CONTRACT BETWEEN CUSTOMER AND KIMONIX.

USER AND CUSTOMER, HEREBY REPRESENT AND WARRANT THAT THEIR USE OF AND ACCESS TO THE SERVICES ASSOCIATED WITH CUSTOMER, ARE PERFORMED UNDER CUSTOMER'S AUTHORIZATION AND SHALL INURE TO THE BENEFIT OR LIABILITY OF THE CUSTOMER.

Any separate written agreement entered into between Kimonix and Customer with respect to use and access to the Solution, shall take precedence over conflicting provisions in these Terms.

1. The Services

1.1. Kimonix Solution. The Kimonix Solution is an online Software-as-a-Service platform for ecommerce merchandising, personalization and product discovery, made available as one or more Applications. Its capabilities include, without limitation: (i) building and maintaining rule-based collections, including determining which products belong to a collection and the order of products within it; (ii) varying collection membership, product availability and product order by market, country, locale or other segment; (iii) personalizing the order of products within storefront collections and the content of merchandising elements for individual Shoppers; (iv) generating and displaying product recommendation and cross-sell elements on Customer's storefront; (v) generating product selections, audiences and feeds for use in Customer's email and advertising channels; (vi) conducting A/B tests across Customer's live storefront traffic and reporting on merchandising performance; and (vii) providing search and conversational product discovery to Shoppers. In order to use the Kimonix Solution Customer will need to provide Kimonix with the relevant access credentials and thereby allow Kimonix to collect, process and analyze such internal store data, documents and information, and, for those features Customer enables, to perform the actions described in Section 1.4. Customer (including via the Users) acknowledges and agrees that it (and not Kimonix) has sole control over which information or access credentials are provided to Kimonix, which Applications it installs, and which features it enables.

1.2. Scope and Applicability. These Terms of Use apply only to your access and usage of the Services.

1.3. Modification of the Services. Kimonix may continuously update its Services with new capabilities or offerings or replace and/or discontinue some of the capabilities. You acknowledge and agree that some of the features and capabilities may be experimental and/or offered in limited versions or limited locations. In addition, Kimonix may at any time, in its sole discretion add or remove supported features and/or capabilities from the Solution. Customer's sole remedy in the event of such changes shall be, where such changes reflect a material decrease in functionality, to terminate any affected subscription to the Solution. In such event Customer is required to provide Kimonix with written notice of such termination not later than within fourteen (14) days of being notified of such adverse change and Kimonix shall provide Customer with a refund for the pre-paid un-used subscription fees.

1.4. Actions Performed by the Solution. Certain features of the Solution act on Customer's store and storefront, including by creating, ordering, varying, updating or publishing collections and merchandising strategies, by displaying recommendation, cross-sell and search elements to Shoppers, by presenting different versions of a collection or element to different Shoppers for the purpose of personalization or A/B testing, and by adding products to a Shopper's cart at that Shopper's direction. Customer authorizes Kimonix to perform such actions through the access credentials Customer provides, for those features Customer enables. Where a feature is configured so that an action requires Customer's approval before it is applied, Kimonix will apply that action only after a User has given that approval. Customer is responsible for the configuration it selects, for the approvals its Users grant, and for reviewing the results. For the avoidance of doubt, the Solution does not complete transactions, process payments, or fulfill orders.

1.5. AI Features. Certain features of the Solution use artificial intelligence and machine learning, including the Kimonix merchandising assistant, any conversational search or shopping agent made available to Shoppers, and any sorting strategy or template that automatically adjusts its own parameters or their relative influence over time (together, the "AI Features"). Customer acknowledges that:

(a) Output generated by the AI Features is produced probabilistically and may be inaccurate, incomplete, outdated or unsuitable for a particular purpose. AI Features may produce different results from identical inputs.

(b) Such output is not advice. Output relating to merchandising, pricing, inventory, or commercial strategy is provided for Customer's consideration only, and Customer is responsible for evaluating it before acting on it. Customer shall not rely on such output as the sole basis for any business, financial, legal or regulatory decision.

(c) Where an AI Feature is configured to require approval before an action is applied to Customer's store, Section 1.4 governs and the action is applied only after a User approves it. Customer is responsible for approvals its Users grant and for any feature it configures to act without approval.

(d) Kimonix uses third-party providers of artificial intelligence services to operate the AI Features, and Customer Data, including Shopper inputs, may be transmitted to and processed by such providers for the purpose of generating output. Such providers act as Kimonix's sub-processors.

(e) Kimonix does not develop or train large language models of its own. The Solution processes Customer Data, including Shopper behavior, in order to generate and improve results for Customer's own store. Kimonix does not use identifiable Customer Data to improve the Solution for any other customer. Kimonix may use Customer Data that has been anonymized and aggregated, in accordance with Section 6.6, to develop and improve the Solution generally. The third-party providers of artificial intelligence services used to operate the AI Features do not use Customer Data to train their models.

(f) Customer shall not use the AI Features to develop, train, or improve any product or service that competes with the Solution, nor to extract, replicate or reverse engineer any model, prompt, weighting or ranking logic underlying the Solution.

1.6. Shopper-Facing AI. Where Customer enables an AI Feature that interacts with Shoppers, that feature operates on Customer's storefront and within Customer's own relationship with its Shoppers. For the avoidance of doubt, and without altering the allocation of responsibility under Sections 9, 10 and 11, Customer configures such features and determines the catalog, pricing, availability and content made available to them, and remains responsible under applicable law for its storefront and its dealings with Shoppers, including any disclosure required that a Shopper is interacting with an automated system. Any product added to a Shopper's cart remains subject to Customer's own checkout, pricing, availability, returns and consumer terms, which govern the transaction. Kimonix is not a party to any transaction between Customer and a Shopper.

2. Registration and User Account

2.1. Account. Customer's account with Kimonix (the "Kimonix Account") is created when Customer installs an Application from the Shopify App Store and grants Kimonix the access to its store requested at installation. Access to the Services is through Customer's Shopify admin; Kimonix does not issue separate login credentials or passwords. On installation and on each User's first use, Kimonix receives from Shopify the store name and URL, the name and email address of that User, and the store data covered by the access granted, together with Customer's consent for Kimonix to receive and process its Customer Data.

2.2. Account Security. Access to the Kimonix Account is controlled by the staff permissions Customer sets in its Shopify admin. Customer is responsible for the Users it allows to open the Applications, for keeping its Shopify credentials confidential, and for all activities that occur under its Kimonix Account, including any use or misuse by a User. We reserve the right to temporarily suspend or permanently terminate a Kimonix Account if we determine that Customer or anyone on its behalf is using it in a manner which violates these Terms.

2.3. User Updates. Terminating a Kimonix Account is separate from cancelling a subscription. Cancelling a subscription under Section 3.3 stops billing and access to the relevant Application. Terminating the Kimonix Account ends the relationship in full. If you wish to modify your Kimonix Account information, or if you wish to terminate your Kimonix Account, you may do so by contacting Kimonix support available at support@kimonix.com. Your Kimonix Account will be terminated within a reasonable time following your request in accordance with Section 6.7, and from that date you will no longer be able to access your Kimonix Account and the permissions, rights and licenses granted to you under these Terms shall terminate. NOTE THAT TERMINATING YOUR KIMONIX ACCOUNT MAY CAUSE THE LOSS AND/OR UNAVAILABILITY OF CONTENT, FEATURES, OR CAPACITY WITH REGARD TO YOUR KIMONIX ACCOUNT. KIMONIX SHALL NOT BE LIABLE IN ANY WAY FOR SUCH UNAVAILABILITY AND/OR LOSS.

3. Fees and Plan

3.1. Fees. The fees payable in consideration for your access to the Services ("Fees") and the payment terms thereof, as well as the scope and term of the Services, shall be in accordance with the plan chosen by You upon your registration to the Service ("Plan"). A Plan may consist of a recurring fixed fee, fees that vary with Customer's usage of the Services ("Usage Fees"), or both. The applicable fixed fees, Usage Fee rates and any included allowances are those presented to Customer at the time of installation or in the applicable order form, and may differ between Applications.

3.1.1. Billing Through the Shopify App Store. Where Customer installs an Application through the Shopify App Store, Fees are charged through Shopify's billing systems and are subject to Shopify's own terms, billing cycles and currency handling. Customer's approval of the applicable charge within Shopify is a condition of access to the Services, and Kimonix is unable to provide the Services where such approval is withheld, revoked, or where a charge fails. Customer acknowledges that Kimonix does not control Shopify's billing schedule, and that invoices, receipts and refunds for such charges are administered through Shopify.

3.1.2. Free Trials. Kimonix may make an Application available for an initial trial period at no charge on a store's first installation of that Application, the length of which is presented to Customer at installation and may differ between Applications. No Fees, including Usage Fees, accrue during the trial period. The Plan does not commence, and no Commitment Period begins to run, until the trial period ends and Customer's first payment becomes due. Unless Customer cancels before the trial period ends, the Plan commences automatically and Fees begin to accrue from that date. Kimonix may modify or withdraw trial availability at any time, and may limit trials to one per Customer or store. Reinstallation is governed by Section 3.6.

3.1.3. Usage Fees. Usage Fees are calculated from Customer's actual usage of the Services during the applicable billing period, measured by Kimonix's own systems, which shall be the record of usage absent manifest error. Usage Fees are billed in arrears following the period in which the usage occurred. Rates may be tiered, such that different rates apply to different volume bands within a single billing period. Where an Application is billed through the Shopify App Store, Usage Fees are subject to a capped amount approved by Customer at installation. Customer acknowledges that usage may exceed the approved cap, that charges above the cap cannot be collected until Customer approves an increased cap, and that Kimonix may request such an approval or suspend or limit the affected features until the cap is increased. Certain features are billed at cost, meaning Kimonix passes through the charges it incurs from third-party providers for Customer's usage above any included allowance. The current allowances and rates are those presented at installation.

3.2. Payment of Fees. We may allow several means of payment such as bank transfer, payment through an online payment gateway, and other means we may make available from time to time. If we make online payment available through our Services such payment option is executed via third party payment clearance service providers or payment gateway providers (the "Payment Services") that may be integrated and embedded in the Services. If you choose to proceed with an online payment, then you: (i) agree to review and be bound by the relevant Payment Services' terms of use and privacy policy; (ii) acknowledge that you may need to hold, or register, an active account at such Payment Services in order to complete a purchase and (iii) acknowledge that confirmation or rejection of your payment is not performed by Kimonix. We are not responsible or liable for any activities or conduct of any Payment Services, and you agree to hold us harmless, and expressly release us, from any and all liability arising from or in connection with any payment activity performed on our Services.

3.3. Term and Cancellation.

(a) Standard Plans. Unless Customer's Plan includes a Commitment Period, the Plan continues until cancelled, billed on the recurring cycle presented at installation. Customer may cancel at any time by uninstalling the relevant Application, which constitutes notice of termination and takes effect immediately. No cancellation fee applies. Fees already charged for the current billing period are not refunded, and Usage Fees accrued before cancellation remain payable.

(b) Plans with a Commitment Period. Where Customer's Plan includes a minimum commitment period agreed with Kimonix (a "Commitment Period"), Customer may not cancel that Plan for convenience before the Commitment Period ends, and Section 3.5 applies. Commitment Periods are agreed as part of a custom or negotiated Plan and do not apply to Plans purchased on Kimonix's standard self-serve terms.

(c) Termination by Kimonix. Kimonix may terminate a Plan at any time, for convenience, on written notice (including by email), and shall refund any pre-paid unused Fees. Usage Fees for usage already delivered are not refundable.

(d) Termination for Breach. Either party may terminate immediately on written notice if the other commits a material breach which, where capable of remedy, is not remedied within thirty (30) days of notice.

(e) Other Termination Rights. Customer's right to terminate following a material decrease in functionality is set out in Section 1.3. Cancellation of a subscription does not of itself terminate Customer's Kimonix Account; account termination and deletion of Customer Data are governed by Sections 2.3 and 6.7.

3.4. Unless otherwise set forth in an applicable Plan, recurring fixed Fees are payable in advance of the period to which they relate, and Usage Fees are payable in arrears following the period in which the usage occurred.

3.5. Commitment Periods. A custom or negotiated Plan may include a Commitment Period, the length of which is agreed in writing with Kimonix. Commitment Periods do not apply to Plans purchased on Kimonix's standard self-serve terms. Fees for a Commitment Period are charged either (i) in advance for the full Commitment Period, or (ii) periodically across the Commitment Period, as agreed with Customer.

Customer may not cancel a Plan with a Commitment Period for convenience before that period ends. Uninstalling the Application constitutes notice of termination and results in the immediate loss of access to the Services, but does not reduce or discharge Customer's obligation to pay the Fees for the full Commitment Period.

Where Fees have been charged in advance, they are non-refundable, except as set out in Sections 1.3 and 3.3(c). Where Fees are charged periodically, the Fees remaining for the Commitment Period fall due on termination and are payable in accordance with the payment terms agreed with Customer. The Commitment Period begins when the Plan commences under Section 3.1.2.

3.6. Reinstallation. Where Customer uninstalls an Application and later reinstalls it, Customer selects a Plan from those Kimonix then offers on a self-service basis. No free trial period applies on reinstallation, and Fees begin to accrue immediately on selection of a Plan. A previously offered Plan, a custom or negotiated Plan, and any further free trial period are available only by agreement with Kimonix.

3.7. Existing Plans. Kimonix may change the Plans and Fee structures it offers from time to time. Where it does, a Customer already subscribed to a previously offered Plan continues on that Plan, at the Fees and on the commercial terms presented to Customer when it subscribed. Moving to a different Plan requires Kimonix's agreement, and Kimonix is under no obligation to make a currently offered Plan available to a Customer subscribed to a previously offered Plan. A previously offered Plan remains available only for so long as Customer's subscription to it continues without interruption. If Customer uninstalls the Application, or the Plan otherwise terminates, that Plan ends and any subsequent installation or subscription is on the Plan and Fees then currently offered. References in these Terms to Fees, Usage Fees, included allowances, billing cycles and capped amounts are to those applicable to Customer's own Plan, and a provision of these Terms that describes a feature of a Plan Customer does not hold does not apply to Customer.

3.8. Taxes. Fees are exclusive of value added tax, sales tax, withholding and any other tax or duty, which Customer is responsible for in addition to the Fees, other than taxes on Kimonix's income. Where Fees are collected through the Shopify App Store, tax handling follows Shopify's arrangements.

4. Intellectual Property Rights; License

4.1. Kimonix Intellectual Property. Any proprietary and intellectual property rights in and to the Solution including any content thereof, such as logos, graphics, icons, images, as well as the selection, assembly and arrangement thereof (the "Content") and related materials, Kimonix's trademarks, trade names, copyrightable materials, designs, "look and feel," all whether or not registered and/or capable of being registered, and any and all Feedback as defined herein (Collectively, the "Kimonix Properties"), are owned and/or licensed to Kimonix or its affiliates or licensors and are subject to copyright and other applicable intellectual property rights under Federal and state United States law, Israel law, foreign laws and international conventions.

4.2. Your Use Rights. Subject to your compliance with these Terms, and unless otherwise agreed in writing between you and Kimonix, Kimonix grants you a limited, worldwide, non-exclusive, non-assignable, not-tradeable, non-sub-licensable, fully and immediately revocable at our discretion, license, to access and use the Solution and where you have purchased a Plan to use and access the Solution in the scope of such Plan, all solely for Customer's internal business purposes, in accordance with these Terms. Except as stated above, no other rights in the Solution or the Services are granted. As between Customer and Kimonix, Customer retains all rights title and interest in and to Customer Data and has all required consents, licenses and assurances for the transfer of the Customer Data to Kimonix for the purposes of providing the Services and/or as permitted or referenced under these Terms.

4.3. Use Restrictions. You may not and you shall not permit any person, and/or any third party to (i) copy, modify, distribute, publicly display, transfer or create derivative works of, adapt, emulate, translate, reverse engineer, compile, decompile, disassemble or reproduce the Solution, or any parts thereof, for any purpose, (ii) remove or delete any and all copyright notices, restrictions and signs indicating proprietary rights of Kimonix and/or its licensors, including copyright mark [©] or trademark [® or ™] contained in or accompanying the Services, (iii) create a browser or border environment around the Solution, link, including in-line linking, to elements on the Solution, such as images, posters and videos, and/or frame or mirror any part thereof or use the Services as a services bureau or otherwise to provide services which are in essence similar to the Services to third parties; (iv) transmit, distribute, display or otherwise make available through or in connection with the Services any content, including any Customer Data (as defined below), in a manner which infringes third party rights, including intellectual property rights and privacy rights, or which may contain any unlawful content; (v) transmit or otherwise make available in connection with use of the Services any malware or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vi) interfere with or disrupt the operation of the Services, or the servers or networks that host them or make the Services available; (vii) use the Services for and/or in connection with any illegal conduct and/or any form of spam, unsolicited mail or similar conduct; (viii) access and/or use any Services and/or the Content in order to build a competitive product or service; (ix) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Services; (x) bypass any measures which are used to prevent, control or restrict access to the Services and/or certain functionalities therein; (xi) infringe or violate any of the terms and conditions of this Agreement. You hereby agree that upon Kimonix's request you will immediately return and purge from your systems all materials and copies of the same, collected, created or used in breach of these Terms.

4.4. Feedback. In the event that Users provide Kimonix with any suggestions, comments or other feedback relating to Kimonix's Services (collectively, "Feedback"), such Feedback is provided 'As Is' and is and will be deemed as the sole and exclusive property of Kimonix and you hereby irrevocably assign to Kimonix all of your rights, title and interest in and to all Feedback, if any, and waive any moral rights you may have in such Feedback. Without derogating from the foregoing, you hereby represent and warrant that you shall not provide any Feedback which is subject to any third-party rights or any limitations or which you are otherwise precluded from providing to Kimonix and shall promptly inform Kimonix as soon as you become aware of any third-party right or limitation which may apply to Feedback already provided by you.

4.5. Third Party Components. The Services may use or include third party software, files and components that are subject to open source and third-party license terms ("Third-Party Components"). Your right to use such Third-Party Components as part of, or in connection with, the Services is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third-Party Components and these Terms, the licensing terms of the Third-Party Components shall prevail only in connection with the related Third-Party Components. Without derogating from Kimonix's warranties under section 9, Kimonix disclaims all liability related to any third-party components utilized in the Services. You acknowledge that Kimonix is not the author, owner or licensor of any Third-Party Components, and that Kimonix makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third-Party Components. Under no circumstances shall the Services or any portion thereof (except for the Third-Party Components contained therein) be deemed to be "open source" or "publicly available" software.

5. Confidentiality

5.1. Either party (a "Disclosing Party") may disclose or make available to the other party (a "Receiving Party") certain confidential information regarding its technology, operations and business ("Confidential Information"). Receiving Party agrees to use best reasonable industry measures to protect the confidentiality and not disclose the Confidential Information to any third party or use any Confidential Information except as required to provide or use of the Services or the Solution in the scope of the parties' engagement hereunder. Confidential Information shall not include information that Receiving Party can show by written evidence (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions. Receiving Party shall not be prevented from disclosing Confidential Information pursuant to a binding court order or similar binding legal requirement for disclosure, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Receiving Party shall in any event remain liable for any actions or omissions performed by its employees and service providers, as if performed by Receiving Party. Upon termination or expiration of this agreement for any reason, or upon Customer's written request, Kimonix shall return or permanently destroy all Customer Data in its possession in accordance with Section 6.7.

6. Our Privacy Policy; Customer Data

6.1. Kimonix Privacy Policy. We respect the privacy of our Users and are committed to protecting the personal information you share with us or that we collect in connection with your use of the Services. Such personal information may be obtained directly from Users (as data subjects) or from the Customer, all in accordance with these Terms and our Privacy Policy. By accessing or using the Services you agree to the Privacy Policy.

6.2. Authorization to share Customer Data. You hereby represent and warrant that you have the full right, permissions, and consents to use and share any data and information you make available to Us through the Services, including without limitation any Personally Identifiable Information (together "Customer Data") under these Terms.

6.3. Compliance with Data Protection Laws. Kimonix and Customer shall comply with all applicable privacy and data protection laws, including without limitation, the European Union's General Data Protection Regulation (EU 2016/679) ("GDPR"), the California Consumer Privacy Act as amended by the California Privacy Rights Act ("CCPA/CPRA"), the Virginia Consumer Data Protection Act ("VCDPA"), the Colorado Privacy Act ("CPA"), and any other applicable laws and regulations relating to the processing of "Personally Identifiable Information" ("PII") and privacy protection, as amended from time to time, that apply to them in connection with the Customer Data (collectively, "Data Protection Laws"). The Parties acknowledge that to the extent that the Customer Data include PII ("Customer Data PII"), Kimonix shall be deemed a 'Data Processor' of Customer with respect to the processing by Kimonix of such Customer Data PII, and Customer shall be deemed a "Data Controller" (as such terms are defined by the GDPR). Customer hereby agrees that Kimonix may retain the Customer Data PII for as long as Customer's account is active or as otherwise needed to provide Customer with the Services contemplated hereunder and as permitted by applicable law. Retention and deletion of Customer Data PII following deactivation or cessation of use is governed by Section 6.7.

6.4. Security of Customer Data PII. Without limiting the foregoing, and in addition to its confidentiality obligations as otherwise set forth herein, Kimonix will, with respect to Customer Data PII, use commercially reasonable efforts to (i) ensure the security and confidentiality of such information or materials, (ii) protect against any anticipated threats or hazards to the security or integrity of such records, and (iii) detect unauthorized access to or use of such records or information.

6.5. Use of Customer Data. You hereby grant Kimonix a non-exclusive, non-assignable, non-transferable license to use Customer Data you made available to us in the scope of your use or access to the Services (including for the collection storage, processing, analysis, display, transfer and creation of derivatives, thereof) for the purpose of providing the Services to you and to the Customer with which your account is associated, as contemplated hereunder. Kimonix will store and maintain Customer Data for such period of time necessary for it to provide the Services to you or Customer (as the case may be).

6.6. Anonymous Cumulative Information. Without derogating from the foregoing, you hereby grant Kimonix a perpetual, irrevocable, non-exclusive, worldwide, royalty-free right and license to use Customer Data that has been anonymized and that cannot be used to identify or otherwise understood to be related to you or to Customer or third party, for the purpose of internal research or otherwise improving or enhancing the Services (or any part thereof).

6.7. Retention and Deletion of Customer Data.

(a) During the term, Kimonix retains Customer Data for as long as necessary to provide the Services. Certain categories are subject to shorter rolling retention periods, including conversation logs generated by the AI Features, which are retained for ninety (90) days from creation and then deleted.

(b) Following termination of the Services, howsoever arising, Kimonix will delete Customer Data within thirty (30) days, or within the applicable rolling retention period under (a) if that period expires sooner. Customer access to the Services and to Customer Data ceases immediately on termination, and Kimonix has no obligation to store, restore, export or provide access to Customer Data after that point. Customer is responsible for exporting anything it wishes to keep before terminating.

(c) Customer may request deletion of Customer Data at any time during the term by written request to support@kimonix.com, and Kimonix will comply within thirty (30) days. Deletion of data necessary to operate the Services may require termination of the affected Application.

(d) Data deleted under this Section is removed from Kimonix's live systems within the periods stated above, and may persist in Kimonix's routine backups for up to twelve (12) months after deletion, after which it is removed by the backup rotation cycle. Backed-up data is retained solely for disaster recovery, is not accessed or used for any other purpose, is subject to the same security measures as live data, and if any backup is restored, data that was previously deleted is deleted again promptly following restoration.

(e) Notwithstanding the foregoing, Kimonix may retain Customer Data where and for so long as retention is required by applicable law, and may retain records of the existence, term and fees of Customer's account as necessary for tax, accounting and audit purposes.

(f) This Section does not apply to Customer Data that has been anonymized and aggregated such that it can no longer be associated with Customer, any User or any Shopper, which Kimonix may continue to use in accordance with Section 6.6.

6.8. Processing on Customer's Behalf. To the extent Kimonix processes Customer Data PII as a Data Processor under Section 6.3, Kimonix will:

(a) process it only to provide the Services and on Customer's documented instructions, which are these Terms and Customer's use and configuration of the Services, including with regard to the transfer and storage of Customer Data PII outside Customer's country as described in the Privacy Policy, and inform Customer if it believes an instruction infringes Data Protection Laws;

(b) ensure that the persons it authorizes to process Customer Data PII are bound by an obligation of confidentiality;

(c) protect Customer Data PII in accordance with Section 6.4;

(d) engage sub-processors only under written terms that impose data protection obligations substantially similar to those in this Section, remain responsible to Customer for their performance, and inform Customer of any intended addition or replacement of a sub-processor, by notice in the Application or by email at Kimonix's election. Customer may object on reasonable data protection grounds, and if the objection cannot be resolved, Customer's remedy is to stop using the affected Application;

(e) taking into account the nature of the processing and the information available to it, provide Customer with reasonable assistance in meeting Customer's obligations under Data Protection Laws regarding data subject requests, security of processing, notification of personal data breaches, and data protection impact assessments;

(f) notify Customer without undue delay after becoming aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of or access to Customer Data PII;

(g) delete Customer Data PII in accordance with Section 6.7; and

(h) make available to Customer the information reasonably necessary to demonstrate compliance with this Section, and allow for and contribute to audits where required by Data Protection Laws, subject to reasonable advance notice, confidentiality, and frequency, and at Customer's cost.

Customers who require a signed data processing agreement may request one at support@kimonix.com.

7. Availability

7.1. Services Availability. The Services availability and functionality depend on various factors, such as communication networks, software, hardware, and Kimonix's service providers and contractors. Kimonix will make all reasonable efforts to have the Services available. Notwithstanding the foregoing, Kimonix does not warrant or guarantee that the Services will operate and/or be available at all times without disruption or interruption, or that it will be immune from unauthorized access or will otherwise be error-free.

8. User Eligibility

8.1. You must be at least eighteen (18) years of age to use the Services. By using the Services and agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; or (ii) that you are the legal guardian of the User under the age of eighteen (18) and both you and the User have read and agreed to these Terms and approved of the User's continued use of the Services subject to these Terms; (iii) that you have not previously been suspended or removed from the Services; and (iv) that your use of the Services is in compliance with any and all applicable laws and regulations.

9. Disclaimer of Warranties

9.1. KIMONIX DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE SERVICES (OR ANY PART THEREOF). THE SERVICES INCLUDING WITHOUT LIMITATION ANY CONTENT, MATERIALS, DATA AND INFORMATION MADE AVAILABLE THROUGH OR RELATED THERETO, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. KIMONIX AND ITS AFFILIATES AND/OR ITS SUBSIDIARIES, INCLUDING ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES AND OTHER AFFILIATES (COLLECTIVELY, "KIMONIX AFFILIATES"), JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, LEGALITY, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY CONTENT, DATA, RESULTS, OR OTHER INFORMATION AVAILABLE, OBTAINED OR GENERATED IN CONNECTION WITH YOUR OR ANY USER'S USE OF THE SERVICES.

9.2. KIMONIX DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES, SOLUTION AND/OR WEBSITE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SERVICES AND/OR WEBSITE, INCLUDING USE OF AND/OR RELIANCE ON ANY CONTENT AVAILABLE THROUGH THE WEBSITE, IS ENTIRELY, OR OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AT YOUR OWN RISK.

9.3. WITHOUT LIMITING SECTIONS 9.1 AND 9.2, KIMONIX MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, SUITABILITY OR TIMELINESS OF ANY OUTPUT GENERATED BY THE AI FEATURES, OR THAT SUCH OUTPUT WILL BE FREE FROM ERROR, BIAS OR OMISSION. CUSTOMER ACKNOWLEDGES THAT THE AI FEATURES ARE PROBABILISTIC IN NATURE AND THAT OUTPUT MAY VARY. ALL USE OF AND RELIANCE ON OUTPUT IS AT CUSTOMER'S SOLE RISK.

10. Indemnification

10.1. YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS KIMONIX, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, ALLEGED CLAIMS, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED), AND INCLUDING REASONABLE ATTORNEY'S FEES RELATED IN ANY WAY TO: (I) YOUR BREACH OF ANY TERM OR CONDITION OF THESE TERMS, (II) YOUR USE OF, RELIANCE ON OR ACCESS TO THE SERVICES; (III) ANY RIGHTS OF A THIRD PARTY WITH REGARD TO YOUR CUSTOMER DATA, INCLUDING PRIVACY OR INTELLECTUAL PROPERTY RIGHTS. WE WILL PROVIDE YOU WITH WRITTEN NOTICE OF SUCH CLAIM, SUIT OR ACTION AND WE WILL ALLOW YOU TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU HEREUNDER AS LONG AS YOU CONDUCT SUCH DEFENSE DILIGENTLY.

11. Limitation of Liability

11.1. IN NO EVENT SHALL KIMONIX AND/OR ANY OF THE KIMONIX AFFILIATES BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM OR ARISING OUT OF THE SERVICES, USE OR INABILITY TO USE THE SERVICES, FAILURE OF THE SERVICES TO PERFORM AS EXPECTED, LOSS OF GOODWILL, LOSS OF DATA OR PROFITS, THE PERFORMANCE OR FAILURE OF KIMONIX TO PERFORM UNDER THESE TERMS, AND ANY OTHER ACT OR OMISSION OF KIMONIX BY ANY OTHER CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM THE CONDUCT OF ANY USERS AND/OR THIRD PARTY WEBSITES.

11.2. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS, KIMONIX IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICES OR ANY CONTENT, KIMONIX'S LIABILITY SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO KIMONIX UNDER APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. IN ANY CASE NO ACTION MAY BE BROUGHT BY YOU IN CONNECTION WITH THE SERVICES MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.

11.3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 11 SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN AN ACTION OF CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR KIMONIX'S PROVISION OF THE SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND EVEN IF KIMONIX AND/OR ANY KIMONIX AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES AND/OR DAMAGES.

12. Refer & Earn Program

Kimonix offers a referral program ("Refer & Earn Program") that allows eligible participants to refer third-party businesses to Kimonix and earn rewards. Participation is subject to the following terms:

12.1. Eligibility. The Refer & Earn Program is open to individuals who are at least 18 years old and legally able to participate in referral programs in their country of residence. Employees of Kimonix and its affiliates, as well as their immediate family members, are not eligible to participate.

12.2. How It Works. To participate, eligible individuals must complete and submit the referral form on the Kimonix website. A successful referral is defined as a business that: (a) completes a demo with the Kimonix team, and (b) selects and subscribes to a paid Kimonix plan, whether monthly or annual.

12.3. Rewards.

• $100 (USD) digital gift card for each qualified referral that completes a demo and that adheres to the criteria of Kimonix's ICP as listed on the Refer & Earn landing page.
• An additional gift card ranging from $100 to $1,000 (USD) depending on the paid plan the referred brand selects.
• All rewards are issued in the form of gift cards; no cash, cash equivalents, or alternative payment methods will be provided.

• Rewards are one-time only per referred brand and will be transferred to the destined recipient within 30 days after the referred brand paid its first invoice as a Kimonix customer. For annual subscriptions, reward amounts are based on the value of the 'monthly fee' calculated as the annual fee divided by twelve. So if the annual fee is, for example, $12,000, the monthly fee will be $12,000/12, i.e. $1,000, which means the reward would be $500.
• Referred brands must not have had any previous contact with Kimonix (as a customer, a past demo or past trial) in the period of the past six months. Any referrals that had contact with Kimonix beyond this period will be counted as a 'new lead' and are eligible for the reward program.

12.4. Limitations and Conditions. Only referrals submitted through the official referral form will qualify. Self-referrals are not eligible. Referred businesses must operate an active, publicly accessible ecommerce website at the time of referral. Stores that are unlaunched, in "coming soon" or "opening soon" mode, password-protected, or otherwise not transacting with real customers do not qualify, even if a demo is completed. There is no cap on the number of referrals you can make, but each referral must meet the qualifications independently. Kimonix reserves the right to verify eligibility, withhold or cancel rewards in cases of suspected fraud, and modify or terminate the Program at any time without notice.

12.5. Taxes and Reporting. Participants are responsible for any taxes, duties, or government fees associated with receiving rewards. Kimonix may report rewards to tax authorities where required by law.

12.6. Privacy. Participation in the Refer & Earn Program requires the submission of certain personal information. Kimonix will process this information in accordance with its Privacy Policy.

12.7. Contact. For questions or support related to the Refer & Earn Program, please contact: support@kimonix.com.

12.8. Changes and Termination. Kimonix reserves the right to modify, suspend, or terminate the Refer & Earn Program or its terms at any time, at its sole discretion, without prior notice.

13. Amendments to these Terms

13.1. Changes to these Terms. Kimonix may change these Terms from time to time.

(a) Material changes. Where a change materially affects Customer's rights or obligations, Kimonix will give Customer not less than seven (7) days' notice before the change takes effect, by notice within the Solution or by email to the address associated with Customer's Kimonix Account, at Kimonix's election. The notice will identify that these Terms have changed and where the updated version can be read.

(b) Right to terminate. If Customer does not accept a material change, Customer may terminate the affected Plan at any time before the change takes effect, in accordance with Section 3.3, and the change will not apply to Customer during any remaining paid period. Continued use of the Services after a material change takes effect constitutes acceptance of it.

(c) Other changes. All other changes take effect when the updated Terms are published, and are identified by the "Last revised" date at the top of these Terms. Continued use of the Services after that date constitutes acceptance.

(d) Corrections. Correcting a typographical error, a broken link, or a statement that was inaccurate when written does not by itself constitute a material change.

14. General

14.1. Relationship of the Parties. These Terms do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.

14.2. Governing Law and Jurisdiction. Any claim relating to the use of the Services will be governed by and interpreted in accordance with the laws of the State of Israel, without reference to its conflict-of-laws principles. Any dispute arising out of or related to your use of the Services will be brought in, and you hereby consent to the exclusive jurisdiction and venue in, the competent courts of Tel-Aviv, Israel.

14.3. Assignment. You may not assign, sublicense, or otherwise transfer any or all of your rights or obligations under these Terms, without Kimonix's prior express written consent. We may assign our rights and/or obligations hereunder and/or transfer ownership rights in the Solution and Services (or any part thereof) to a third party without your consent or providing any prior notice.

14.4. Severability. If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision.

14.5. No Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.

14.6. Without limitation, you agree that a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

15. Contact Us

These Terms are entered into with Kimonix Ecommerce Ltd., whose office is at Aluf Kalman Magen St 3, Tel Aviv-Yafo, 6107075, Israel.

If you wish to receive more information on these Terms, please contact us at support@kimonix.com.