Terms & Conditions
1. Introduction and Definitions
1.1 Business-to-Business Scope
These Terms and Conditions (“Terms”) govern the use of services provided by Kinetic Software GmbH (“Kinetic,” “we,” “us,” or “our”), registered with the commercial register of the local court of Charlottenburg under HRB 271231 B, with its business address at Köpenicker Str. 40a, 10179 Berlin, Germany. Kinetic’s services are offered exclusively to commercial entities (B2B) and are not intended for use by consumers (private individuals).
1.2 Services Overview
Kinetic offers a platform that allows businesses to edit and add interactive widgets to their emails and email templates. By using our services, you agree to be bound by these Terms. Please read them carefully.
1.3 Definitions
“Customer”: The business entity using Kinetic’s services (B2B only).
“End User”: Recipients of emails containing interactive elements (i.e., the Customer’s own clients or subscribers).
“Services”: The platform, APIs, and tools provided by Kinetic for editing and adding interactive elements to emails.
“Kinetic Email”: Emails enhanced with Kinetic’s interactive, dynamic, or kinetic design elements (HTML/CSS).
“Interactive Elements” or “Widgets”: Dynamic features that can be incorporated into emails (e.g., carousels, add-to-cart functionality, dropdowns, in-email surveys).
Important Disclaimer:
Kinetic does not send out emails on behalf of Customers. Kinetic provides only the technology to edit and embed interactive elements into the Customer’s emails and templates. The Customer is solely responsible for compliance with email marketing, data protection, and consumer protection laws in its relevant jurisdictions.
2. Description of Services
2.1 Interactive Widget Integration
We offer a range of interactive elements (e.g., product highlights, add-to-cart buttons, dropdowns, surveys) for integration into your email templates.
2.2 Service Access and Integration
You can access our Services by creating an account and utilizing API integrations (e.g., with Shopify, Klaviyo, and other authorized sub-processors noted in our DPA). You grant us access to your data solely for providing the Services.
2.3 Technical Requirements
You must be using Klaviyo as your email service provider (ESP).
You must send a sufficient volume of emails (on average ~300 per day) to enable certain AMP-based features.
At least one domain must be whitelisted for AMP compatibility.
2.4 Service Limitations
Widgets available may depend on your chosen plan.
While we do not strictly limit widget count, using too many in a single email may impact deliverability.
Kinetic does not guarantee compatibility with every email client; unsupported clients receive a fallback version.
2.5 Additional Support
We may provide support with API integrations, AMP whitelisting, or embedding widgets into your email templates.
2.6 Service Modifications
Kinetic may modify, suspend, or discontinue any portion of the Services at any time. We endeavor to notify you of significant changes.
3. User Registration and Account Management
3.1 Account Creation
To use Kinetic’s services, you must create an account, provide accurate domain-whitelisting data, grant API permissions (e.g., Shopify/Klaviyo), and agree to these Terms (and our Privacy Policy).
3.2 Account Eligibility and Restrictions
Age/Capacity Requirement: You must be at least 18 years old and legally able to form a binding contract on behalf of your business.
Only business entities (B2B) may register.
Sending volume and widget usage may be subject to your plan limits.
We may reject any account application at our discretion.
3.3 Account Security & Customer Responsibilities
You must keep your login credentials confidential.
Notify Kinetic immediately if you suspect unauthorized access.
Your account is for your entity’s use only; do not transfer or share it without Kinetic’s written consent.
3.4 Customer Data
You retain rights and responsibilities for your own customer information.
Kinetic accesses such data solely to provide our Services, in accordance with our Privacy Policy and DPA.
3.5 Account Suspension & Termination
We reserve the right to suspend or terminate accounts for violations of these Terms, unlawful activities, nonpayment, fraudulent information, or to protect our Services, users, or legal interests. We will attempt to provide notice where feasible.
3.6 Account Closure
You may request account closure at any time via support.
Kinetic will delete your account data pursuant to our data retention policies and applicable laws, unless otherwise required.
3.7 Modifications to Account Terms
We may update these account terms periodically. Continued use after notification of changes constitutes acceptance.
4. User Obligations and Conduct
4.1 Acceptable Use
Kinetic’s widgets may only be used via Klaviyo (unless otherwise approved).
You must comply with applicable laws and anti-spam regulations (e.g., GDPR, CAN-SPAM) when using the Services.
4.2 Expanded Prohibited Activities
You must not use Kinetic’s Services to:
Send unsolicited bulk emails, spam, or any unlawful/defamatory/harmful content.
Infringe on any third-party intellectual property or privacy rights.
Attempt to bypass security measures or reverse-engineer any portion of our platform.
Interfere with or disrupt the Service’s integrity (e.g., via denial-of-service attacks, introducing malware, etc.).
Use the Services in ways that conflict with these Terms, local laws, or others’ rights.
4.3 Content Responsibility
You solely control the content of your emails.
Ensure you have legal rights and permissions (e.g., IP licenses) for any text, images, or data you upload.
4.4 Data Management and Compliance
You are responsible for lawful collection of recipient data and verifying necessary opt-ins.
You act as Data Controller under the GDPR; Kinetic is your Data Processor.
You must handle your End Users’ personal data in compliance with all relevant data protection laws.
4.5 Payment Processing
Kinetic does not process payments (e.g., for your end customers).
If your widgets link to a checkout, that checkout is operated by third parties (e.g., Shopify).
You assume all responsibility for transactions and refunds vis-à-vis your own end customers.
4.6 Email Client Compatibility
Not all email clients support interactive or AMP-based features.
Kinetic supplies fallback versions for unsupported environments.
4.7 Violation of Terms
We may remove or block your account if you breach these Terms or engage in prohibited uses.
Severe breaches may result in immediate suspension or termination without prior notice.
5. Intellectual Property Rights
5.1 Kinetic’s Intellectual Property
All rights, title, and interest in our technology (including software, source code, widgets, analytics, dashboards, templates, etc.) remain with Kinetic and/or its licensors. You have only a limited license to use the Services as intended.
5.2 Customer Data Ownership
You own your data (e.g., Shopify/Klaviyo data). Kinetic does not claim ownership of your user/customer information.
5.3 Data Usage
Kinetic processes your data solely to provide the Services, in line with our DPA and Privacy Policy.
5.4 Third-Party Services
We integrate with systems like Shopify, Klaviyo, and possibly others. Kinetic is not responsible for disruptions or errors in those third-party services.
5.5 Restrictions
No reverse engineering, copying, or disassembling Kinetic’s software.
No removal of proprietary notices or creation of unauthorized derivative works.
5.6 Feedback and Improvements
If you provide feedback or suggestions, Kinetic may use them freely without obligation or attribution.
5.7 License to Use Services
Kinetic grants you a limited, non-exclusive, non-transferable license to use our platform to enhance your B2B email campaigns, subject to these Terms.
6. Limitation of Liability
6.1 Disclaimer of Warranties
Kinetic provides its Services “as is” and “as available.” We disclaim all warranties (express, implied, or statutory), including merchantability, fitness for a particular purpose, non-infringement, or error-free availability.
6.2 No Guarantee of Results
Kinetic does not guarantee any particular outcome (e.g., revenue uplift, open/click rates). The effectiveness of your emails depends on your own content, marketing strategy, and external factors (like recipient engagement).
6.3 Limitation of Liability
To the fullest extent permitted by law:
Kinetic’s total liability for all claims is capped at the higher of (i) the fees you paid us in the preceding twelve (12) months, or (ii) €2,500.
Kinetic is not liable for indirect, incidental, consequential, punitive, or special damages (e.g., lost profits or data), even if advised of the possibility.
These limits do not apply to intentional misconduct, gross negligence, or mandatory statutory liabilities under German or EU law.
6.4 Indemnification
You agree to indemnify Kinetic (and its officers, directors, employees, affiliates) against third-party claims arising from your willful misconduct, breach of these Terms, or infringement of IP rights due to the content you upload or distribute. Kinetic will promptly notify you of such claims and cooperate in your defense.
6.5 Force Majeure
Kinetic is not liable for delays or failures caused by events beyond our reasonable control (e.g., natural disasters, war, strikes, government actions, etc.).
7. Termination and Suspension of Services
7.1 Contract Duration and Termination by Customer
Monthly Plans: Terminate with 30 days’ written notice (or via our platform). Service continues until the end of the monthly billing cycle following that notice.
Annual Plans: Provide at least 30 days’ notice prior to the annual renewal date to avoid automatic renewal.
No Refunds: All fees are non-refundable. No partial or pro-rated refunds apply if you cancel mid-term.
7.2 Kinetic Termination for Cause
We may terminate if you fundamentally breach these Terms (e.g., nonpayment, violating laws or IP rights) and fail to cure within fourteen (14) days of our written notice, or if continued provision presents undue legal or operational risk.
7.3 Effects of Termination
Your access to the Kinetic platform ceases immediately upon termination.
We will handle your data according to GDPR and our data retention policies. Personal data is typically deleted within 60 days unless legally required otherwise.
We may keep anonymized or aggregated data for analytics.
7.4 Data Retention and Deletion
Per GDPR, we retain Customer data only as long as necessary and will delete or return personal data upon termination, subject to legal obligations.
7.5 Early Termination and Refunds
Early termination does not entitle you to any refund for unused subscription periods.
7.6 Post-Termination Obligations
You are responsible for any outstanding fees accrued before termination. Kinetic may retain necessary records for compliance (tax, accounting, etc.).
7.7 Right to Audit
Kinetic will reasonably cooperate with audits to demonstrate compliance with data-protection obligations.
8. Payment Terms and Conditions
8.1 Pricing and Billing
Pricing is outlined in your selected plan.
Billing is monthly or annually, in advance (auto-renew unless canceled).
8.2 Payment Methods
Credit Cards (Visa, MasterCard, American Express)
Bank Transfer (or other methods we make available)
8.3 Late Payments and Payment Failures
If your payment method is declined or overdue, Kinetic may suspend or terminate your access.
You remain responsible for any accrued charges, plus any applicable late fees to the extent permitted by law.
8.4 Automatic Renewal Details
Subscriptions automatically renew (monthly or annually) unless canceled in accordance with Section 7.1.
It is your responsibility to ensure payment details remain current to avoid interruption.
9. Changes to Terms and Services
9.1 Modifications
Kinetic may update these Terms at any time. We will provide at least 30 days’ notice of material changes.
9.2 Customer’s Right to Reject Changes
If you do not agree with a proposed change, you may terminate before the new Terms take effect. Continued use afterward constitutes acceptance.
10. Governing Law, Dispute Resolution & Arbitration
10.1 Governing Law and Jurisdiction
These Terms are governed by German law. Unless arbitration is otherwise required by this Section, the courts in Berlin have exclusive jurisdiction for disputes (where permissible by law).
10.2 Dispute Resolution & Arbitration
Where legally enforceable, you and Kinetic agree to make best efforts to resolve disputes amicably. If no settlement is reached, all claims or controversies arising out of or relating to these Terms or the Services may (at Kinetic’s discretion) be resolved by final and binding arbitration conducted in English under the auspices of an established arbitration institution in Berlin. Each party will bear its own costs, and the arbitrator’s fees will be shared equally unless the arbitrator orders otherwise.
10.3 Class Action Waiver
To the fullest extent allowed by applicable law, you waive any right to bring or participate in class or collective actions, consolidated or representative proceedings, or class arbitrations against Kinetic. Claims must be brought solely on an individual basis.
10.4 Time Limit on Claims
Any claim arising out of or related to these Terms must be commenced within one (1) year from the date the claim arises, unless a shorter period is required by law. If this one-year limitation is not enforceable in your jurisdiction, the minimum permissible statutory period applies.
11. Confidentiality
11.1 Definition of Confidential Information
Includes non-public information disclosed by one party to the other (in writing, orally, or via inspection of tangible objects).
11.2 Obligations
Both parties must keep Confidential Information secret and not disclose it to unauthorized third parties without prior written consent.
11.3 Exceptions
Confidentiality obligations do not apply to information that is already public, received lawfully from a third party with no confidentiality duty, or independently developed without reference to the disclosed information.
12. Data Processing Agreement (DPA)
Note: The attached DPA is an integral part of these Terms. By using Kinetic’s Services, the Customer acknowledges and agrees to both these Terms and the DPA. Kinetic acts as a Data Processor on behalf of the Customer (the Data Controller).
12.1 Subject Matter and Duration of Processing
Kinetic processes personal data on behalf of the Customer solely for the provision of interactive email technology.
12.2 Nature and Purpose of Data Processing
Data includes Shopify and Klaviyo customer/cart information for creating and sending interactive emails.
12.3 Categories of Data Subjects
Include the Customer’s own end customers, newsletter subscribers, and similar.
12.4 Obligations and Rights of the Controller
The Customer remains responsible for lawfully collecting data, responding to data subject requests, and providing instructions to Kinetic.
12.5 Obligations of the Processor
Kinetic implements appropriate technical and organizational measures, keeps data confidential, notifies of breaches, and deletes or returns data upon termination, unless legally required otherwise.
12.6 Technical and Organizational Measures
Measures include encryption, restricted access, multi-factor authentication, and regular security audits.
12.7 Sub-processors
Kinetic may engage sub-processors (e.g., Google Cloud, PostHog) with the Customer’s consent, ensuring they are bound by similar data-protection obligations.
12.8 Breach Notification
Kinetic notifies the Customer without undue delay (no later than 24 hours) of any personal data breach.
12.9 Rights of Data Subjects
Kinetic assists the Customer in fulfilling data-subject rights requests (e.g., access, rectification, erasure).
12.10 Intellectual Property
All IP related to Kinetic’s email technology remains with Kinetic.
12.11 Liability
The Processor is not liable for data-protection violations arising from the Controller’s insufficient or incorrect instructions.
13. Entire Agreement, Severability, No Waiver
13.1 Entire Agreement
These Terms (together with the DPA and any referenced policies) constitute the entire agreement between you and Kinetic regarding the Services.
13.2 Severability
If any provision is deemed unenforceable, the remainder remains in full effect. The invalid provision will be interpreted to fulfill its intended purpose to the extent allowed by law.
13.3 No Waiver
Kinetic’s failure or delay in enforcing any provision shall not operate as a waiver of that provision or any subsequent breach. Any waiver must be in writing and signed by an authorized Kinetic representative to be valid.
14. Contact Information
For legal inquiries, notices, or service of process, please contact:
Kinetic Software GmbH
Köpenicker Str. 40a,
10179 Berlin, Germany
Email: legal@usekinetic.com
By using Kinetic’s Services, you acknowledge that you have read, understood, and agree to be bound by these Terms.