These Terms govern your access to and use of Kairos CFO, our finance intelligence service. Please read them carefully. By creating an account, signing an order, or using the service, you agree to be bound by them.
If you are agreeing to these Terms on behalf of a company, close corporation, trust, partnership or other juristic person, you warrant that you are authorised to do so and that the juristic person is bound.
Clause 5 sets out what Kairos CFO is not. It is the most important clause in this document and you should read it before you subscribe.
1.Who we are and how to contact us
The following disclosures are made in accordance with section 43 of the Electronic Communications and Transactions Act 25 of 2002.
1.1
Full legal name: Kairos Intelligence (Pty) Ltd ("Kairos", "we", "us", "our"), a private company incorporated in the Republic of South Africa under registration number 2026/50194/07.
1.2
Registered and physical address: Atterbury House, Hampton Office Park, 20 Georgian Crescent, Bryanston, 2191, South Africa. This address may be used for the service of legal process.
1.3
Website: https://kairosintel.app
1.4
Email: sfourie@kairosintel.co.za for all legal, contractual and service matters.
1.5
Telephone: +27 76 545 2494.
1.6
Kairos is not a registered auditor, a registered accountant, a tax practitioner, a financial services provider or a legal practitioner, and is not registered with the Independent Regulatory Board for Auditors, the South African Institute of Chartered Accountants, the South African Institute of Professional Accountants or any comparable professional body. Clause 5 explains what follows from that.
2.Definitions
In these Terms, unless the context indicates otherwise:
- "Accounting System" means a third-party accounting or financial record-keeping system from which Customer Data is drawn, including Xero, Sage Business Cloud, Sage Intacct and Zoho Books, and any other system we support from time to time.
- "Customer Data" means data, records and content that you or your Users upload, or that we retrieve from an Accounting System with your authorisation, including ledger entries, trial balances, invoices, bills, bank transactions, contact records, tax codes and supporting documents.
- "Derived Insight" means any output the service generates from Customer Data, including calculations, reconciliations, ratio and variance analyses, cash flow projections, exception flags, scores, benchmarks, narrative commentary and suggested actions.
- "Entity" means a single legal person, trust, fund, branch or reporting unit whose financial records are connected to or loaded into the service. The Entity is the unit by which the service is licensed and metered.
- "Order" means the subscription order, proposal acceptance, quotation, marketplace subscription or online checkout by which you subscribe.
- "Personal Information" bears the meaning given to it in POPIA.
- "POPIA" means the Protection of Personal Information Act 4 of 2013.
- "Service" means Kairos CFO, being the finance intelligence service described in clause 4.
- "Subscription Period" means the period recorded in your Order, and each renewal of it.
- "User" means an individual you authorise to access the Service under your subscription.
2.1
Headings are for convenience and do not affect interpretation. Words importing one gender include the others, and the singular includes the plural and vice versa. "Including" and "in particular" are not words of limitation. A reference to a statute is a reference to that statute as amended or replaced. The rule that an agreement is construed against the party who drafted it does not apply.
3.Acceptance and structure of the agreement
3.1
These Terms, together with your Order, our Privacy Policy (which is Part B of this document), our Refund and Cancellation Policy and any written service description or schedule we provide, constitute the whole agreement between us in relation to Kairos CFO.
3.2
Where there is a conflict, the order of precedence is: (a) a signed written agreement between us that expressly overrides these Terms; (b) the Order; (c) these Terms; (d) the Privacy Policy and the Refund and Cancellation Policy; (e) any other document.
3.3
You accept these Terms by any of the following: clicking to accept them, signing an Order that refers to them, subscribing through a marketplace listing that refers to them, paying a subscription invoice, or accessing or using the Service.
3.4
These Terms apply to Kairos CFO only. Our other modules are supplied under their own terms, and subscribing to Kairos CFO gives you no right to access them.
3.5
No demonstration credentials, trial environment or evaluation access will be issued except under a signed evaluation agreement. Any access issued in error confers no rights.
4.What Kairos CFO does
4.1
Kairos CFO is a subscription software service that reads financial data from your Accounting System and produces analysis, exception reporting, reconciliation support, management reporting support and commentary. It is delivered over the internet on a software-as-a-service basis.
The Service typically includes, depending on the plan recorded in your Order:
- scheduled retrieval of ledger, transaction, contact and balance data from a connected Accounting System;
- integrity and consistency checks across the ledger, including detection of unusual, duplicated, misposted, out-of-period or unreconciled items;
- ratio, trend, variance and margin analysis, and cash flow observation and projection;
- management reporting packs and narrative commentary generated from the data;
- ingestion of a historical archive to produce a retrospective financial health assessment; and
- benchmark comparison against aggregated, de-identified peer data, where your plan includes it.
4.2
The features you are entitled to use, the number of Entities and Users covered, and any usage or volume limits, are those recorded in your Order. Connecting an Entity beyond your licensed count is not permitted, and we may meter, report on and invoice for Entities connected in excess of the licensed count.
4.3
We may improve, modify, add to or discontinue features. We will not materially reduce the core functionality you have paid for during a Subscription Period without at least 30 days' written notice and, if the reduction is material and adverse to you, the right to cancel and receive a pro-rata refund of prepaid fees for the unused portion.
5.What Kairos CFO is not
This clause is central to the agreement and to the price at which the Service is offered. Please read it carefully.
5.1
Kairos CFO is an intelligence layer. It sits above your Accounting System. It does not replace it and is not a system of record. Your Accounting System remains your accounting records and your books of account for the purposes of the Companies Act 71 of 2008, the Tax Administration Act 28 of 2011 and any other law.
5.2
You remain solely responsible for keeping accurate accounting records, for retaining them for the periods the law requires, and for the completeness and accuracy of the data in your Accounting System. Nothing in the Service discharges any of those obligations, and output from the Service is not a substitute for a required record.
5.3
Every Derived Insight is an inference produced by software from the data available to it. Derived Insights are labelled within the Service as distinct from source data. A Derived Insight is not a substitute for the underlying record, and where a Derived Insight and a source record differ, the source record governs.
5.4
The Service does not perform an audit, an independent review, a compilation engagement, an agreed-upon-procedures engagement or any other assurance or related service, and produces no assurance opinion, conclusion or report. Nothing produced by the Service constitutes an audit or review under the Auditing Profession Act 26 of 2005 or under any auditing or review standard.
5.5
The Service does not prepare annual financial statements. Reports it produces are internal management information and are not prepared in accordance with IFRS, IFRS for SMEs or any other financial reporting framework, and are not represented as complying with one.
5.6
Kairos does not provide accounting, tax, legal, actuarial, valuation, insolvency or company secretarial advice, and is not a tax practitioner registered under section 240 of the Tax Administration Act. Output is informational decision-support material. You remain responsible for obtaining professional advice and for every accounting, tax, disclosure and statutory position you adopt.
5.7
Kairos is not a financial services provider and does not render financial services as defined in the Financial Advisory and Intermediary Services Act 37 of 2002. Nothing in the Service is advice on, or an intermediary service in respect of, a financial product. Cash flow projections, funding observations and similar output are analytical, not advisory.
5.8
Kairos is not a credit provider, credit bureau, bank, payment service provider or custodian, and does not hold, receive, transmit or control funds.
5.9
Where the Service surfaces a suggested journal, adjustment, reclassification, treatment or draft wording, that suggestion requires review and approval by an appropriately qualified person before it is acted on, posted to the Accounting System, or communicated to a third party.
5.10
The Service is not a fraud detection or forensic system. It may flag anomalies, but the absence of a flag is not a representation that no error, omission, irregularity, misstatement or fraud exists.
6.Accounts, Users and Entities
6.1
You must provide accurate registration information and keep it current.
6.2
You are responsible for all activity under your account and for your Users' compliance with these Terms. You must keep credentials confidential, use multi-factor authentication where we make it available, and notify us without delay at sfourie@kairosintel.co.za if you suspect any unauthorised access.
6.3
Login credentials are personal to a named individual and may not be shared. You must remove Users promptly when their authorisation ends.
6.4
You must ensure that access within your account is configured so that a User can see only the Entities that User is entitled to see. We provide the controls; the configuration is yours.
6.5
Each Entity connected to the Service consumes one Entity licence for as long as it remains connected, whether or not it is actively used. Disconnecting an Entity releases the licence with effect from the next billing period.
7.Where you use Kairos CFO for your own clients
This clause applies if you are an accounting firm, bookkeeping practice, outsourced finance function, advisory firm or similar, and you use the Service in respect of Entities belonging to your own clients.
7.1
You warrant that you hold a current written mandate from each client that entitles you to access that client's financial records, to connect them to a third-party service, and to process the Personal Information they contain.
7.2
You must not connect an Entity for which you do not hold that mandate. You must disconnect an Entity within 10 business days of your mandate ending.
7.3
You remain responsible to your clients for the services you provide to them. We contract with you, not with your clients, and we owe your clients no duty. Nothing in these Terms creates any relationship between us and any client of yours.
7.4
In relation to Personal Information in your clients' data, your client is the responsible party, you are the operator or a responsible party in your own right depending on your mandate, and we are a further operator or sub-operator in the chain. You must ensure your client agreements permit that arrangement.
7.5
You may present Derived Insights to your clients as part of your own service. You must not represent them as your own product, remove our attribution or provenance markers, or hold out that the Service performs a function it does not, and you must not describe output as audited, reviewed or assured.
7.6
You indemnify us against any claim by a client of yours arising from your use of the Service, except to the extent the claim arises from our own breach of these Terms.
8.Your obligations and acceptable use
You must not, and must not permit any person to:
- copy, adapt, translate, reverse engineer, decompile, disassemble or attempt to derive the source code, model weights, prompts, rule logic, scoring methodology or data structures of the Service, except to the extent this restriction is unenforceable under section 19B of the Copyright Act 98 of 1978;
- attempt to extract, elicit or reconstruct our system instructions, rule sets or scoring logic, including by adversarial prompting;
- resell, sublicense, rent, lease or provide the Service as a service bureau to any third party, except as clause 7 permits or under a written channel agreement with us;
- use the Service to build or train a competing product or service, or to benchmark it for publication without our prior written consent;
- circumvent Entity, User or usage limits, or use automated means to extract output at scale;
- upload malicious code, or content that is unlawful, defamatory or infringes a third party's rights;
- upload Personal Information without a lawful basis to do so, or upload special personal information or children's information other than where the Service is designed to receive it and you have the necessary authorisation;
- interfere with the security, integrity or performance of the Service, or test, probe or scan it without our prior written consent; or
- use the Service in breach of any applicable law, including tax, exchange control, anti-money-laundering, competition and data protection law.
8.1
You warrant that you have the right to provide us with Customer Data and to authorise our access to your Accounting System, and that our processing of it in accordance with these Terms will not breach any law or any third party's rights.
8.2
You are responsible for the accuracy, quality and completeness of Customer Data. The Service cannot detect an error in data it has never seen, and output quality depends on input quality. Where your ledger is incomplete, unreconciled or out of date, the Service's output will reflect that.
8.3
Where your plan includes benchmark output, you must not use it to co-ordinate pricing, allocate markets or customers, or otherwise engage in conduct prohibited by the Competition Act 89 of 1998. Benchmark output is provided on an aggregated and anonymised basis for internal performance management only.
9.Connections to your Accounting System
9.1
Accounting Systems are supplied by third parties on their own terms. You are responsible for maintaining your own licence, subscription and authorisations for them, and for the permissions you grant.
9.2
By connecting an Accounting System you authorise us to access and retrieve Customer Data from it for the purposes of providing the Service. You warrant that the person granting the connection is authorised to do so.
9.3
We request read access only, except where a feature expressly requires write access and you have separately enabled that feature. We will not post, amend, delete or reverse an entry in your Accounting System unless you have enabled a write-back feature and approved the specific action.
9.4
You may revoke a connection at any time through your Accounting System or through the Service. Revoking a connection stops further retrieval but does not delete data already retrieved, which is dealt with in clause 26.
9.5
We are not responsible for the availability, accuracy, security or continued existence of any Accounting System, or for changes a third party makes to its interfaces, data model, rate limits or access terms. Where an Accounting System restricts the volume or frequency of retrieval, the Service is limited accordingly.
9.6
If a third party withdraws or materially changes access and we cannot provide a reasonable equivalent within 60 days, either of us may cancel and you will receive a pro-rata refund of prepaid fees for the unused portion.
10.Historical archive ingestion and migrated records
10.1
Where your Order includes ingestion of a historical archive, we will load the historical data you supply or authorise us to retrieve, and produce a retrospective assessment from it. Ingestion is charged as a separate one-off fee per Entity.
10.2
Ingested historical records are marked within the Service as migrated. A migrated record is not represented as having been created contemporaneously within the Service, and no assertion is made about the circumstances in which it was originally created, approved or retained.
10.3
You must not present a migrated record, or output derived from one, as a native or contemporaneous record of the Service. Doing so would be a misrepresentation and is a material breach of these Terms.
10.4
The accuracy and completeness of a historical assessment depends entirely on the archive supplied. We do not verify that an archive is complete, and a gap in the archive will not necessarily be visible in the output.
11.Fees, invoicing and payment
11.1
Fees are those set out in your Order or on our published rate card at the time of subscription. Unless stated otherwise, fees are quoted in South African Rand.
11.2
Kairos is not currently registered as a vendor for value-added tax purposes. No VAT is charged on our fees. If Kairos becomes liable to register, fees will become exclusive of VAT with effect from the date of registration, and we will give you at least 30 days' written notice before that change takes effect.
11.3
Subscription fees are charged per Entity per billing period and are payable in advance, monthly or annually, as recorded in your Order. Onboarding, implementation, integration setup, training and historical archive ingestion fees are one-off fees, charged separately and invoiced on commencement of that work.
11.4
Where you connect Entities in excess of your licensed count, we will invoice for the additional Entities at the applicable rate, pro-rated from the date of connection.
11.5
Card and electronic payments are processed by Payfast (Pty) Ltd, an independent payment service provider. We do not receive, store or have access to your full card number, card verification value or banking credentials. Your use of that gateway is subject to the payment provider's own terms and privacy notice.
11.6
Where you have authorised a recurring payment or debit order, that authority continues until you cancel your subscription in accordance with the Refund and Cancellation Policy, or until you withdraw the authority through your payment provider. Withdrawing a payment authority is not by itself a cancellation, and fees accrued before cancellation remain payable.
11.7
You must keep your payment details current. If a payment fails, we will notify you and may retry. If payment remains outstanding for 7 days after notice, we may suspend access under clause 25.
11.8
Amounts not paid when due bear interest at the maximum rate permitted by the National Credit Act 34 of 2005 or, where that Act does not apply, at the prime lending rate of our bankers plus 2% per annum, calculated daily from the due date to date of payment. Any agreed penalty or interest is subject to the Conventional Penalties Act 15 of 1962.
11.9
You must raise any dispute about an invoice within 14 days of the invoice date, in writing and with reasons. Undisputed amounts remain payable.
11.10
We may change our fees on at least 30 days' written notice, effective from the start of your next Subscription Period. If a price increase is unacceptable to you, you may cancel before it takes effect without penalty.
12.Purchases through a marketplace or reseller
12.1
You may subscribe through an app marketplace operated by an Accounting System provider, or through an authorised reseller or channel partner. Where you do, this clause applies and prevails over clause 11 to the extent of any conflict.
12.2
Billing, invoicing, payment, price, refunds and cancellation are governed by your agreement with the marketplace operator or reseller, not by us. We do not invoice you and cannot process a refund for a subscription billed by a third party.
12.3
These Terms continue to govern your use of the Service itself, including clauses 5, 8, 13, 14, 16, 17, 23 and 24.
12.4
Where a reseller has made a commitment to you that is inconsistent with these Terms, that commitment binds the reseller and not us. A reseller has no authority to vary these Terms, to make a representation about the Service on our behalf, or to bind us.
12.5
If your agreement with the marketplace operator or reseller ends, or that party's agreement with us ends, your access may end with it. We will use reasonable endeavours to offer you a direct subscription on our then-current terms.
13.Customer Data — ownership and licence
13.1
As between you and us, you own all right, title and interest in Customer Data. Nothing in these Terms transfers ownership of Customer Data to us.
13.2
You grant us a non-exclusive, worldwide, royalty-free licence to host, store, copy, transmit, process, analyse and display Customer Data, and to create Derived Insights from it, solely to the extent necessary to provide, support, secure and improve the Service for you, and to comply with law.
13.3
We will not sell Customer Data, and we will not disclose identifiable Customer Data to any other customer.
13.4
Where Customer Data contains Personal Information, we act as your operator and process it only on your documented instructions, as further described in the Privacy Policy and in any operator agreement between us.
14.Derived Insights, aggregation and benchmarking
14.1
Derived Insights generated for you from your own Customer Data are licensed to you for your internal business purposes for the duration of your subscription, and may be retained and used by you after termination for your own record-keeping, statutory and audit purposes.
14.2
We own the Service, the rules engine, the models, the methodologies, the benchmark constructs and the analytical templates that generate Derived Insights. Receiving a Derived Insight transfers no right in that underlying technology.
14.3
We may create and use aggregated, de-identified and statistically derived data from Customer Data across our customer base in order to operate, secure, benchmark, correct, train and improve the Service, and to publish market-level analysis.
Aggregated data is subject to the following controls, which we will not weaken without your consent:
- it is de-identified so that it does not identify you, your Users, your clients, your customers, your suppliers or any individual, and is not reasonably capable of re-identification;
- it is not published or made available at a level of granularity that would permit a recipient to derive an individual participant's figures, and a minimum cohort threshold is applied before any benchmark is released;
- it is not made available to any person in a form that identifies you as its source without your prior written consent; and
- it does not include the content of any document, narrative or free-text field in a form that could reveal the identity or affairs of any person.
14.4
You may notify us in writing that you do not wish your de-identified data to contribute to benchmark output that we publish or make available to other customers, and we will exclude it from that output within 30 days. That election does not restrict our use of de-identified data internally to operate, correct, secure and improve the Service, and does not entitle you to a fee reduction. If you make that election, benchmark features may become unavailable to you.
14.5
Where you provide us with feedback, suggestions or feature requests, you grant us a perpetual, irrevocable, royalty-free licence to use them without obligation to you. Feedback is not confidential information.
15.Artificial intelligence and automated processing
15.1
The Service uses machine learning and large language model technology to generate analysis, narrative commentary and suggestions. You acknowledge that such technology is probabilistic and may produce output that is incomplete, out of date, internally inconsistent or incorrect.
15.2
Output must be reviewed by a competent human before it is relied on, acted on, posted to your Accounting System, filed with a regulator or a revenue authority, provided to a third party, or included in financial statements. The Service is a decision-support tool and is not a substitute for professional judgement.
15.3
We do not make any decision about you or any individual that has legal consequences, or that affects an individual to a substantial degree, solely by automated means. Where the Service produces a score, flag or exception, it is a prompt for human review and not a determination. This clause is given effect in accordance with section 71 of POPIA.
15.4
We may use third-party model providers to process content on our behalf. Those providers act as our sub-operators under written terms that prohibit them from using your content to train their general-purpose models. Our current sub-operators are listed in the Privacy Policy.
16.Intellectual property and provenance markers
16.1
We and our licensors own all intellectual property rights in the Service, including its software, rules engine, data models, user interface, documentation, methodologies, benchmark constructs, trade marks, the Kairos name and the Kairos falcon device. Subject to your payment of fees and compliance with these Terms, we grant you a limited, non-exclusive, non-transferable, revocable right to access and use the Service during your Subscription Period for your internal business purposes.
16.2
All rights not expressly granted are reserved. No right is granted by implication or estoppel.
16.3
Reports and other outputs generated by the Service may carry provenance and authentication markers, which may include a visible verification seal containing a content hash and a verification address, embedded per-recipient identifiers, and per-tenant output fingerprinting. Their purpose is to allow a recipient to verify that a document is authentic and unaltered, and to allow us to identify the source of an unauthorised disclosure. This disclosure is given expressly so that the use of such markers is known to you and to your Users.
16.4
You must not remove, obscure, alter or attempt to defeat any provenance marker, verification seal or attribution notice in output.
16.5
You may share output with your own clients, advisers, auditors, funders and regulators in the ordinary course of your business, subject to clause 17. You may not publish output commercially, or hold it out as your own product, without our written consent.
17.No reliance by third parties
Output from the Service is prepared for you and for your internal purposes only.
17.1
We owe no duty of care to any person other than you. No third party may rely on output from the Service, and we accept no liability to any bank, funder, investor, purchaser, auditor, revenue authority, regulator or other person who receives or relies on it, whether or not we knew that it might be provided to them.
17.2
If you provide output to a third party, you do so on your own responsibility. You must make clear to that third party that the output is internal management information, that it is not audited, reviewed or assured, and that it is not prepared in accordance with a financial reporting framework.
17.3
You indemnify us against any claim by a third party arising from that party's receipt of, or reliance on, output you provided to them.
17.4
Nothing in this clause limits any liability that cannot lawfully be excluded.
18.Confidentiality
18.1
Each party may receive information of the other that is marked confidential or that a reasonable person would understand to be confidential. Each party will keep the other's confidential information secret, use it only for the purposes of this agreement, and disclose it only to those of its personnel and professional advisers who need it and who are bound by equivalent obligations.
18.2
These obligations do not apply to information that is or becomes public other than through a breach, was lawfully known before disclosure, is independently developed, or is lawfully received from a third party without restriction.
18.3
A party may disclose confidential information where required by law, court order or a regulator, and will where lawfully able give the other party prior notice and a reasonable opportunity to object.
18.4
These obligations survive termination for five years, and indefinitely in respect of Personal Information and trade secrets.
19.Data protection
19.1
Each party will comply with POPIA and any other applicable data protection law.
19.2
In respect of Personal Information contained in Customer Data, you are the responsible party and we are your operator, or where clause 7 applies, a sub-operator in the chain. We process such Personal Information only with your knowledge or authorisation, treat it as confidential, and maintain the security safeguards required by section 19 of POPIA.
19.3
We will notify you without undue delay after becoming aware of a compromise of Personal Information in our systems affecting your data, and will provide the information you reasonably need to meet your own obligations under section 22 of POPIA.
19.4
In respect of the account, billing and marketing information we hold about you and your Users, we act as responsible party in our own right. How we handle that information is set out in the Privacy Policy, which forms part of these Terms.
19.5
We may engage sub-operators. We remain responsible for their acts and omissions in relation to your Personal Information, impose equivalent obligations on them in writing, and maintain a current list in the Privacy Policy. We will give you at least 30 days' notice of a new sub-operator, and you may object on reasonable data protection grounds.
19.6
We will assist you, at your cost where the assistance is substantial, in responding to data subject requests, in conducting personal information impact assessments, and in dealing with the Information Regulator.
19.7
Cross-border transfers are made only in accordance with section 72 of POPIA. Details of where data is hosted and processed are set out in the Privacy Policy.
20.Availability, support and maintenance
20.1
We will use reasonable commercial endeavours to make the Service available, but we do not warrant that it will be uninterrupted, timely, secure or error-free. Availability commitments, if any, are those recorded in a written service level schedule to your Order.
20.2
We provide support by email at sfourie@kairosintel.co.za during 08:00 to 19:00 South African Standard Time on business days, excluding South African public holidays. We aim to acknowledge requests within 24 hours.
20.3
We may perform scheduled maintenance and will give reasonable advance notice where practicable. We may perform emergency maintenance without notice where necessary to protect the security or integrity of the Service.
20.4
The Service depends on your internet connectivity, your devices, and third-party infrastructure and Accounting Systems. We are not responsible for unavailability caused by factors outside our reasonable control, including rate limiting or outage at an Accounting System.
21.Security
21.1
We maintain appropriate, reasonable technical and organisational measures to protect Customer Data against loss, damage, unlawful access and unauthorised destruction, having regard to generally accepted information security practices.
21.2
Measures include encryption of data in transit and at rest, logical separation of tenant data, role-based access control, least-privilege administrative access, logging and monitoring, and periodic review of our controls.
21.3
You are responsible for security within your own environment, including device security, credential hygiene, the permissions you grant to your Accounting System connection, and the access you configure within the Service.
21.4
You must report any suspected vulnerability or security incident to sfourie@kairosintel.co.za without delay.
22.Warranties and disclaimers
22.1
We warrant that we have the right to grant the rights in these Terms, that we will provide the Service with reasonable skill and care, and that the Service will perform materially in accordance with the written service description current at the time of your subscription.
22.2
Your exclusive remedy for a breach of clause 22.1 is that we will, at our election, correct the non-conformity within a reasonable time or, if we cannot do so, allow you to cancel and refund prepaid fees for the unused portion.
22.3
You warrant that you will comply with clauses 7, 8 and 9, that you have the authority to enter into this agreement, and that you have obtained all consents and authorisations needed for us to access your Accounting System and process Customer Data.
22.4
Except as expressly stated in clause 22.1 and to the fullest extent permitted by law, the Service is provided as is and as available, and we exclude all other warranties, representations, terms and conditions, whether express, implied, statutory or otherwise, including any implied warranty of merchantability, fitness for a particular purpose, accuracy, completeness or non-infringement.
22.5
We do not warrant that the Service will identify every error, omission, irregularity, fraud, misstatement, misposting or compliance failure in your data or operations, and we do not warrant the accuracy or completeness of data obtained from an Accounting System or any other third-party source.
22.6
Nothing in these Terms excludes or limits any right you have under the Consumer Protection Act 68 of 2008 to the extent that Act applies to you, or any liability that cannot lawfully be excluded. Clause 32 explains when that Act applies.
23.Limitation of liability
This clause limits our liability to you. It is drawn to your attention as a provision that limits our risk. Please read it carefully.
23.1
Neither party is liable to the other for any indirect, special, incidental, punitive or consequential loss, or for loss of profit, loss of revenue, loss of anticipated savings, loss of business opportunity, loss of goodwill, or loss or corruption of data, whether or not the possibility of such loss was known.
23.2
Our total aggregate liability arising out of or in connection with this agreement, whether in contract, delict, statute or otherwise, in any period of 12 months is limited to the total fees paid or payable by you to us in the 12 months immediately preceding the event giving rise to the claim.
We are not liable for any loss arising from:
- your reliance on a Derived Insight without the human review required by clause 15.2;
- inaccurate, incomplete, unreconciled, out-of-date or unauthorised Customer Data, or a gap in a historical archive you supplied;
- any act, omission, outage, rate limit or change of an Accounting System or other third-party provider;
- your use of the Service in breach of these Terms;
- any accounting treatment, tax position, disclosure, filing, financial statement, funding application, valuation or commercial decision you make; or
- any penalty, interest, assessment or additional tax imposed on you by a revenue authority.
Nothing in this clause excludes or limits liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- gross negligence or wilful misconduct;
- liability under section 61 of the Consumer Protection Act 68 of 2008;
- a party's obligation to pay fees properly due; or
- any liability that cannot lawfully be excluded or limited.
23.3
Each provision of this clause operates separately. If any part is held unenforceable, the remaining parts continue to apply.
23.4
You must bring any claim under this agreement within 12 months after you became aware, or ought reasonably to have become aware, of the facts giving rise to it, failing which the claim is extinguished, except where a longer period is required by law.
24.Indemnity
24.1
You indemnify us against any claim, loss, liability, fine, penalty and reasonable legal cost arising from: your breach of clause 8; your unlawful processing of Personal Information; a third-party claim that Customer Data infringes that party's rights or was provided without authority; your connection of an Entity without mandate under clause 7; or your use of output in a manner prohibited by these Terms.
24.2
We indemnify you against a third-party claim that your permitted use of the Service infringes that party's South African intellectual property rights, provided you notify us promptly, allow us to control the defence and settlement, and give us reasonable assistance. This indemnity does not apply where the claim arises from Customer Data, from your modification of the Service, from use in breach of these Terms, or from combination with anything not supplied by us.
24.3
If an infringement claim is made or is likely, we may at our option procure the right for you to continue using the Service, modify it so that it is non-infringing, or cancel and refund prepaid fees for the unused portion.
25.Duration, suspension and termination
25.1
This agreement begins when you first accept it and continues for the Subscription Period, renewing automatically for successive periods of the same length unless cancelled in accordance with the Refund and Cancellation Policy.
25.2
Cancellation rights, notice periods and the refund consequences of cancellation are dealt with in the Refund and Cancellation Policy, which forms part of this agreement.
We may suspend your access, in whole or in part, on notice where:
- fees remain unpaid 7 days after we have notified you of non-payment;
- we reasonably believe continued access presents a security, legal or integrity risk to the Service, to us or to another customer;
- you are in material breach of clause 7 or clause 8; or
- we are required to do so by law or by a regulator.
25.3
We will limit the scope and duration of a suspension to what is reasonably necessary, and will restore access promptly once the cause is resolved. Suspension does not suspend your obligation to pay fees, unless the suspension was not attributable to you.
25.4
Either party may cancel immediately on written notice if the other commits a material breach and fails to remedy it within 14 days of written notice, or if the other is placed under business rescue, liquidation, sequestration or a similar process, or commits an act of insolvency.
25.5
We may cancel on 60 days' written notice if we discontinue the Service, and will refund prepaid fees for the unused portion.
26.Consequences of termination and data export
26.1
On termination your right to access the Service ends. Amounts accrued to the date of termination remain payable.
26.2
For 30 days after termination we will make your Customer Data and your Derived Insights available for export in a commonly used machine-readable format. You are responsible for retrieving them within that period. We can assist with a bulk export on request, and may charge a reasonable fee for a non-standard extraction.
26.3
After the export period we will delete or de-identify Customer Data within a further 60 days, except where we are required to retain it by law, or where it exists in encrypted backups that are cycled in the ordinary course, in which case retention remains subject to the confidentiality and security obligations in this agreement until deletion.
26.4
Aggregated and de-identified data created in accordance with clause 14.3 is not affected by termination and may continue to be used.
26.5
Termination of this agreement does not affect your records in your Accounting System, which remain yours and remain in place.
26.6
Clauses 5, 7, 8, 10, 13, 14, 16, 17, 18, 19, 22, 23, 24, 26, 31 and 34 survive termination, together with any other clause that by its nature should survive.
27.Beta and preview features
27.1
We may make features available on a beta, preview, pilot or evaluation basis. These are identified as such and are provided without warranty, without any service level, and without the express warranties in clause 22.1.
27.2
Our liability in relation to beta features is limited to the fees, if any, paid for them. We may modify or withdraw a beta feature at any time.
28.Changes to these Terms
28.1
We may amend these Terms from time to time, including to reflect new features, legal or regulatory requirements, or changes in our commercial model.
28.2
We will publish the amended Terms at https://kairosintel.app and, where the change is material and adverse to you, give you at least 30 days' notice by email before it takes effect.
28.3
If a material adverse change is unacceptable to you, you may cancel before it takes effect and receive a pro-rata refund of prepaid fees for the unused portion. Continued use after the effective date constitutes acceptance.
28.4
Each version of these Terms is versioned and dated. We retain superseded versions and will provide a copy on request.
29.Force majeure
29.1
Neither party is liable for failure or delay in performance caused by an event beyond its reasonable control, including natural disaster, epidemic, war, civil unrest, sabotage, national or regional failure of electricity supply, failure of telecommunications or internet infrastructure, government action, or the failure of a third-party cloud or Accounting System provider that is itself affected by such an event.
29.2
The affected party must notify the other promptly and use reasonable endeavours to mitigate. If the event continues for more than 60 days, either party may cancel on written notice, and prepaid fees for the unused portion will be refunded.
29.3
This clause does not excuse an obligation to pay amounts already due.
30.Notices
30.1
Notices to us must be sent to sfourie@kairosintel.co.za and, if a formal legal notice, also delivered to our address in clause 1.2. Notices to you will be sent to the email address on your account, and to any address you nominate.
30.2
A notice by email is deemed received on the first business day after transmission, provided no delivery failure is received. A notice delivered by hand is deemed received on delivery.
30.3
Each party chooses its address in this clause as its domicilium citandi et executandi for the service of legal process. A party may change its chosen address on 10 business days' written notice, provided the new address is a physical address in South Africa.
31.Dispute resolution
31.1
If a dispute arises, the parties will first attempt to resolve it in good faith through discussion between senior representatives within 15 business days of written notice of the dispute.
31.2
If the dispute is not resolved, it will be referred to arbitration under the rules of the Arbitration Foundation of Southern Africa, before a single arbitrator appointed by agreement or, failing agreement, by the Secretariat of that Foundation. The seat is Johannesburg and the language is English. The award is final and binding, and may be made an order of court.
31.3
Nothing in this clause prevents either party from approaching a court for urgent interim relief, or from enforcing an undisputed debt.
31.4
Where the Consumer Protection Act applies to you, nothing in this clause limits your right to refer a matter to the National Consumer Commission, a consumer court, an ombud with jurisdiction, or an alternative dispute resolution agent, and nothing limits your right to approach a court.
32.Consumer Protection Act
32.1
The Consumer Protection Act 68 of 2008 applies to transactions with natural persons, and with juristic persons whose asset value or annual turnover is below the threshold determined by the Minister from time to time. It does not apply where the customer is a juristic person at or above that threshold.
32.2
Where the Act applies to you, these Terms are subject to it and any provision that is inconsistent with it is, to the extent of the inconsistency, of no force in relation to you. In particular, your rights in respect of fixed-term agreements under section 14, your right to fair and reasonable terms under section 48, and your rights in respect of a supplier's liability under section 61, are not limited by these Terms.
32.3
Where the Electronic Communications and Transactions Act applies, your cooling-off rights under section 44 are addressed in the Refund and Cancellation Policy.
33.General
33.1
This agreement is the whole agreement between the parties and replaces all prior discussions, representations and understandings on its subject matter. No representation not recorded in writing is binding.
33.2
No variation, waiver or cancellation by agreement is valid unless in writing and signed by both parties, except that we may amend these Terms in accordance with clause 28.
33.3
No indulgence granted by a party is a waiver of that party's rights.
33.4
If any provision is found invalid or unenforceable, it is severed and the remainder continues in force.
33.5
You may not cede, assign or delegate any right or obligation without our prior written consent, which will not be unreasonably withheld. We may cede or assign this agreement to a member of our group or in connection with a merger, restructuring or sale of our business, on notice to you.
33.6
Nothing in this agreement creates a partnership, joint venture, employment or agency relationship. Neither party may bind the other.
33.7
This agreement does not confer any right on any third party.
33.8
We may identify you by name and logo as a customer in our client lists and marketing materials, unless you notify us in writing that you do not consent. Any more detailed case study requires your prior written approval.
33.9
Each party warrants that it will comply with applicable anti-bribery, anti-money-laundering and sanctions laws, and that it is not a designated person under any applicable sanctions regime.
33.10
This agreement may be concluded electronically. An electronic or advanced electronic signature, and an electronic record, has the legal effect given to it by the Electronic Communications and Transactions Act.
34.Governing law and jurisdiction
34.1
This agreement is governed by and construed in accordance with the law of the Republic of South Africa.
34.2
Subject to clause 31, the parties consent to the jurisdiction of the High Court of South Africa, Gauteng Division, Johannesburg. We may in our discretion institute proceedings in the Magistrates' Court having jurisdiction, notwithstanding that the amount in issue exceeds that court's ordinary monetary jurisdiction.
34.3
The United Nations Convention on Contracts for the International Sale of Goods does not apply.