Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (this “Agreement”) GOVERNS YOUR (“you” or “your” or “Client”) ACCESS AND USE OF THE SERVICES PROVIDED BY KUSTOMER, LLC (formerly Kustomer, Inc.) (“we,”, “us”, “our”, “Provider” or “Kustomer“). IF CLIENT REGISTERS FOR A FREE TRIAL OF THE PLATFORM, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

BY ACCEPTING THIS AGREEMENT, EITHER BY CHECKING A BOX AND/OR CLICKING A BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS (the earlier to occur, the “EFFECTIVE DATE”) YOU AGREE TO THE PROVISIONS OF THESE TERMS. IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT (INCLUDING ANY SCHEDULES, EXHIBITS AND OTHER DOCUMENTS EXPRESSLY INCORPORATED HEREIN) AND ANY ORDER, THE TERMS AND CONDITIONS SET FORTH IN THE ORDER SHALL PREVAIL, BUT ONLY WITH RESPECT TO THE SUBSCRIPTION PROVIDED UNDER SUCH ORDER. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE DEFINED TERMS “you” and “your” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE PROVISIONS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM OR RECEIVE ANY SUPPORT SERVICES.

You may not access or use the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access or use the Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

Unless otherwise set forth in this Agreement, we will treat any information that you provide to us in connection your use of the Services or our provision of services to you in accordance with our Product Privacy Statement in effect at the time that such information is provided, the current version of which is available at https://www.kustomer.com/privacy/statement/, and which is incorporated into this Agreement.

1. Definitions.

The following defined terms used in this Agreement have the corresponding meanings. Additional defined terms appear throughout the substantive provisions of this Agreement, Order(s), and applicable schedules, exhibits and attachments, if any:

(a) “AI Feature(s)” or “KIQ Feature(s)” means certain features made available in the Services that are powered by artificial intelligence (AI) and machine learning (ML).

(b) “Ancillary Service(s)” means certain features or functionality made available by Kustomer in addition to the Plan Features and Functions of the applicable Subscription Plan, but for clarity, excluding Third Party Services, Support Services, and Professional Services.

(c) “Authorized User” or “End User” means, collectively, Full Users, Seasonal Users and Collaboration Users, each as identified through an individual Authorized User Login.

(d) “Authorized User Login” or “End User Login” means a unique username and password associated with an individual Authorized User for purposes of accessing the Services.

(e) “Collaboration User” means an individual permitted to access the Services for administrative or other legitimate purposes other than to engage with Client’s customers, as further described in the Documentation.

(f) “Consumption Based Pricing” means the Fees associated with any Features that are measured or metered based on actual usage.

(g) “Documentation” means the applicable specifications and user documentation accompanying the Services, as updated from time to time, located at https://support.kustomer.com or at such other URL as Kustomer may provide from time to time.

(h) “External AI Feature(s)” means any AI Feature that is designed to communicate, respond or otherwise interact directly with Client’s customers without an Authorized User acting as an intermediary.

(i) “Feature” means any individual Plan Feature and Function or Ancillary Service.

(j) “Full User” means an individual customer-service agent or other user permitted to access the Services in order to engage with Client’s customers or for administrative purposes for the duration of the Subscription Term, each as identified through an Authorized User Login.

(k) “Internal AI Feature(s)” means any AI Feature that is not an External AI Feature, including AI Features made available to Authorized Users that do not interact directly with Client’s customers.

(l) “Order” means an ordering document specifying the details regarding Client’s subscription to use the Services under this Agreement and Professional Services (if applicable), including the Fees associated with Client’s use of the Services. Client may also enable Ancillary Services or add Paid Users through Client’s routine use of the Services, the purchase of which shall be deemed a separate Order, subject to the terms and conditions of this Agreement.

(m) “Paid User” means, collectively, Full Users and Seasonal Users.

(n) "Plan Features and Functions" means, collectively, those features and functions of the Services that are available for use with respect to the Subscription Plan purchased by Client, including applicable limits. A list of Plan Features and Functions that correspond to each Subscription Plan may be found at https://www.kustomer.com/comprehensive-pricing-details/. Kustomer may from time to time modify the Plan Features and Functions of the Subscription Plan but shall not materially reduce the functionality thereof.

(o) “Professional Services” means the product implementation, training, managed services and/or other professional services to be provided by Kustomer to Client to the extent purchased by Client under an Order and subject to a statement of work or similar document applicable to such services.

(p) “Seasonal User” means an individual customer-service agent or other user that is licensed for defined durations during a Subscription Term. Except as otherwise provided herein, Seasonal Users may only be licensed pursuant to a mutually agreed to Order. No individual licensed through Client’s routine use of the Services shall be considered a Seasonal User.

(q) “Services” or “Platform” means the proprietary software-as-a-service solution provided by Kustomer through the applicable Subscription Plan and Ancillary Services, including underlying technology and Documentation.

(r) “Standard Support Services” means the email, online and telephony support provided by Kustomer in accordance with the Standard Support Policy available at https://www.kustomer.com/policy/standard-support/.

(s) “Subscription” means Client’s right, subject to the terms and conditions of this Agreement, to possess, use and/or access the Services and to receive associated Support Services during the Subscription Term, in each case, as set forth in the applicable Order.

(t) “Subscription Plan” means the level of access to the Services purchased by Client. The level of access purchased by Client determines the Plan Features and Functions that Client is entitled to use.

(u) “Subscription Services” means any Subscription Plan and any Ancillary Service sold on a per Paid User basis. Unless otherwise specified in the Order, all Subscription Services are sold on a 1:1 basis with the quantity of Paid Users and shall remain 1:1 throughout the length of the Subscription Term.

(v) “Subscription Term” means the length of time Client is authorized to access and utilize the Services, as set forth in the applicable Order.

(w) “Support Services” means, the Standard Support Services and/or any upgraded support services specified in an Order or included in the Plan Features and Functions, as applicable.

(x) “Third-Party Service(s)” means connections and/or links to third party websites, products or services where Client maintains a direct contractual relationship with such third party and where Kustomer enables Client to integrate with and access through the Services, including, without limitation, via application programming interfaces, workflows or webhooks. For clarity, any third party listed as a Subprocessor in accordance with the DPA shall not be deemed a Third-Party Service provider as related to such subprocessing activities.

2. Provision of Services and Support Services.

(a) Provision of the Services. During the Subscription Term, and subject to the terms and conditions of this Agreement, Kustomer shall provide Client with access to the Services and, if applicable, Professional Services, as described in each applicable Order. Each Order shall set forth, as applicable: (i) the Subscription Term; (ii) the applicable Subscription Plan (iii) the number of Paid Users permitted to access the Services; (iv) any Ancillary Services to which the Client has access; (v) any Professional Services, (vi) the associated Fees (defined below); and (vii) any additional information, terms and conditions. Client’s use of the Services shall be in accordance with any limitations set forth in this Agreement and all applicable Orders.

(b) Ownership of the Services. As between the parties, Kustomer exclusively owns and reserves all right, title, and interest in and to the Services, the Documentation, Kustomer’s Confidential Information (as defined below), and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or on Client’s behalf. Client may use any Documentation (in whatever medium) that Kustomer provides solely in connection with Client’s permitted use of the Services. Other than the Subscription granted under this Agreement, nothing contained herein shall be construed as granting Client or any Authorized User any right in or to the Services. All rights (including all intellectual property rights) in and to the Services and Professional Services and any related materials or technology not expressly granted or licensed hereunder are expressly reserved by Kustomer.

(c) Provision of Support Services. During the applicable Subscription Term for the Services, Kustomer will provide Client with the applicable Support Services.

(d) Beta Services. From time to time, to the extent applicable, Kustomer may make services that are not generally available to Kustomer’s clients available to Client to try at its option at no additional charge which is labeled “beta,” “pre-release,” “evaluation," “early release” or words of similar import (collectively, “Beta Services”). By using the Beta Services on such evaluation basis, Client accepts the Beta Services on an “as is” basis and acknowledges that Kustomer provides no express or implied warranties, indemnities or commitments, and will have no liability for any harm or damage arising out of or in connection with such use, notwithstanding anything to the contrary in this Agreement. Beta Services may also be subject to supplemental terms that will be presented to Client. Kustomer may discontinue Beta Services at any time in Kustomer’s sole discretion and may never make them generally available. If such Beta Services are made generally available, Client acknowledges that Kustomer may impose fees for the use of such Feature and/or such Feature may only be available with specific Subscription Plans.

(e) Free Trials. From time to time, Kustomer may make the Services or a specific Feature available to Client for a free trial for evaluation purposes. Such free trial may also be subject to the Supplemental Terms or other terms that may be presented to Client prior to such free trial. Such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

i. Trial Subscription. To the extent applicable, Kustomer will make the applicable Subscription Plan and any applicable Ancillary Services available to Client on a trial basis free of charge (“Trial Subscription”) until the earlier of (A) the end of the Trial Subscription period specified by Kustomer prior to the initiation of the Trial Subscription; (B) the start date of any Subscription purchased by Client pursuant to an Order; or (C) termination of the Trial Subscription by Kustomer in its sole discretion. TRIAL SUBSCRIPTION ACCESS TO THE SERVICES IS INTENDED FOR CLIENT’S INTERNAL BUSINESS USE ONLY AND SHALL NOT BE USED TO COMMUNICATE OR OTHERWISE COLLECT OR UPLOAD ANY INFORMATION FROM CLIENT’S CUSTOMERS OR FROM ANY OTHER INDIVIDUAL WHO IS NOT CLIENT’S EMPLOYEE. ANY DATA CLIENT ENTERS INTO THE SERVICES (WHETHER DIRECTLY OR INDIRECTLY THROUGH THIRD-PARTY SERVICES), AND ANY CONFIGURATIONS MADE TO THE SERVICES BY OR FOR CLIENT, DURING THE TRIAL SUBSCRIPTION WILL BE PERMANENTLY LOST UNLESS CLIENT PURCHASES A SUBSCRIPTION TO THE SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF SUCH TRIAL SUBSCRIPTION. NOTWITHSTANDING THE “WARRANTIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION” SECTION BELOW, DURING ANY FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND KUSTOMER SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY TO CLIENT OF ANY TYPE WITH RESPECT TO THE FREE SERVICES FOR THE DURATION OF SUCH FREE TRIAL UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE OUR LIABILITY WITH RESPECT TO THE SERVICES AND ANY PROFESSIONAL SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100.00 U.S. DOLLARS.

ii. Trial Feature. To the extent applicable, Kustomer will make a specific Feature available to Client on a trial basis free of charge (“Trial Feature” together with Trial Subscription, a “Free Trial”) until the earlier of (A) the end of the Trial Subscription period specified by Kustomer prior to the initiation of the Trial Subscription; (B) the start date of the applicable Feature purchased by Client pursuant to an Order; or (C) termination of the Trial Feature by Kustomer in its sole discretion. This Section 2(e)(ii) shall not apply if use of the Feature is a Beta Service nor if use of the specific Feature is pursuant to a Trial Subscription.

(f) Third Party Services. Kustomer may provide links or references to Third-Party Services in the Documentation and/or within the Services, including, but not limited to, integrations and applications made available in Kustomer’s Application Marketplace (available at https://www.kustomer.com/product/integrations/). Such Third-Party Services are not provided by Kustomer, and Kustomer is neither liable nor responsible for (i) their functioning, results or effects or (ii) their privacy practices, data security processes or other policies. Client may be required to purchase a license to such Third-Party Services and is responsible for complying with all third party terms, policies and licenses applicable between Client and such third party governing Client’s access to and use of Third-Party Services. Kustomer does not support, license, control, endorse or otherwise make any representations or warranties regarding any Third-Party Services and cannot guarantee the continued availability of such Third-Party Services, and may disable access to them without entitling you to any refund, credit or other compensation, if, for example and without limitation, the provider of a Third-Party Service ceases to make the Third-Party Service available for interoperation with the Services in a manner acceptable to Kustomer. Kustomer will use reasonable efforts to provide Client with advance notice prior to disabling access to any Third-Party Services, which may include email, a specific announcement on Kustomer's website or within the Services, posting on a blog or by some other similar means.

3. Fees and Payment.

(a) Fees. All charges and fees for the products and services set forth in an Order or for products and services added or incurred pursuant to Client’s routine use of the Services (or otherwise subsequent to Client’s initial Order) (collectively, “Fees”) are due and payable as specified in such Order and are non-refundable except as expressly set forth in this Agreement. Any past due Fees are subject to a late fee at the rate of one and one-half percent (1½%) per month (or the maximum interest rate allowable under applicable law, if less) on past due Fees until satisfaction of payment. Client is liable for all collection fees and expenses, including reasonable attorney fees, relating to collecting overdue Fees. To the extent an Order includes, or Client uses any Feature subject to Consumption Based Pricing, the Fees payable for such Feature shall be subject to the Consumption Based Pricing terms specified in the Supplemental Terms or Order, as applicable.

(b) Taxes. All Fees exclude any sales or use taxes associated with this Agreement and any Order, which shall be Client’s responsibility to pay (other than taxes on Kustomer’s income). Client acknowledges and agrees that Client is solely responsible for any such sales and use taxes that result from this Agreement and any Order. Unless otherwise set forth in the applicable invoice or Order (in which case Client shall remit such taxes to Kustomer along with the applicable Fees), Client will remit any such taxes due directly to the appropriate governmental agency. Client agrees to act in compliance with all applicable state, federal and international laws, rules and regulations in connection with any such payment.

(c) Suspension of Services. Except where expressly stated otherwise in this Agreement or the Supplemental Terms (as defined below), Kustomer shall have the right to: (i) suspend Client’s access to the Services if Client fails to pay any amount due under this Agreement, and such failure continues more than fifteen (15) days after delivery of written notice thereof; and (ii) suspend Client’s access to any Feature if Client fails to pay any applicable additional Fees related to such Feature, and such failure continues more than five (5) days after delivery of written notice thereof.

(d) Notice. Client acknowledges that it bears sole responsibility for maintaining an accurate and up-to-date billing email within the Billing Portal of the Services. Instructions on how to confirm and update such email can be found at https://help.kustomer.com/en_us/manage-your-billing-S15aMDyGL. Solely for purposes of this Section 3, any of Kustomer’s notice requirements shall be satisfied when Kustomer sends email notice to the billing email in the Email for Invoicing field of the applicable Order (or any successor field).

(e) Credit Card. Except where the applicable Order specifies Credit Card as the payment method, any Fees paid by Credit Card are subject to a transaction fee of up to 3% of the applicable Fees.

(f) Payment Disputes. Client shall notify Kustomer in writing within thirty (30) days of the applicable invoice date for any Fees that Client wishes to dispute (“Disputed Fees”). Where Client is disputing any Fees, Client must act reasonably and in good faith and will cooperate diligently and in a timely manner with Kustomer to resolve the dispute. Client may withhold the Disputed Fees until the dispute is resolved but shall pay all undisputed Fees in accordance with this Agreement. Kustomer will not charge Client interest or suspend access to the Services for unpaid Disputed Fees, unless Client fails to cooperate diligently with Kustomer or Kustomer determines the dispute is not reasonable nor brought in good faith by Client.

4. Use of the Services.

Client shall not do, attempt to do, nor permit any person or entity to do, any of the following: (i) create or recreate the source code for any underlying software and technology relating to the Services, or re-engineer, reverse engineer, decompile or disassemble any such underlying software and technology; (ii) access or use the Services to compete against Kustomer, (iii) access or use the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services, (iv) copy, modify, adapt, translate or create derivative works based upon any such underlying software and technology; (v) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Services or any Documentation; (vi) sublicense, sell, lease, rent, timeshare or otherwise transfer, or pledge as security, the Services or its access thereto; (vii) interfere with or disrupt the integrity, security or performance of the Services or any third-party data contained therein; (viii) attempt to bypass, exploit, defeat or disable limitations or restrictions placed on the Services by Kustomer; or (ix) use the Service in a manner that violates any applicable laws, regulations, or third party rights, or (x) use the Services in any manner that would violate the Acceptable Use Policy (“AUP”) available at https://www.kustomer.com/policy/acceptable-use/, as updated from time to time. If Client’s use of the Services materially degrades the performance of the Services or any Feature for other clients, Kustomer may impose reasonable rate limiting controls. Client is solely responsible for decisions made and actions taken with respect to Authorized Users’ use of the Services. Client shall administer the registration and password access for Authorized Users and shall be responsible for maintaining the confidentiality of any and all use under such Authorized User.

5. Ownership of Client Materials.

(a) Client Materials. As between Client and Kustomer, all information and materials provided by Client or on Client’s behalf in connection with Client’s use of the Services (collectively, “Client Materials”), is and shall remain Client’s property, including any modifications or derivative works thereof and, to the extent applicable, shall be deemed Client’s Confidential Information (as defined below). Client hereby grants Kustomer a limited license to use, copy, modify and create derivative works of and from Client Materials as necessary to provide the Services and Professional Services and, solely during the Subscription Term, for Kustomer’s internal business purposes, including operating, maintaining and improving the Services and/or Professional Services. Client acknowledges that Kustomer collects and aggregates anonymous data concerning user behavior, traffic and other interactive and telemetric information (“Service Usage Data”). Such Service Usage Data does not identify Client, any Authorized User or any other individual, and no such identity can be derived from such Service Usage Data. Client agrees that both during and after the Term, Kustomer may retain and use all such Service Usage Data to improve and market the Services and/or Professional Services.

(b) AI Content. Client’s Authorized Users and end-customers may provide Client Materials for use with AI Features ("AI Input") and receive output generated and returned by such AI Features based on the AI Input ("AI Output", and together with AI Input, "AI Content"). As between the parties and to the extent permitted by applicable law, (i) Client retains all ownership of the AI Content and for purposes of this Agreement such AI Content shall be included in Client Materials and (ii) Kustomer retains all ownership in and to all system performance data, machine learning algorithms, and aggregated results of such machine learning. Client acknowledges and agrees that other clients providing similar AI Input to the AI Features may receive the same or similar AI Output. AI Output received by other clients is not Client’s AI Content.

6. Term and Termination.

(a) Term. This Agreement shall commence on the Effective Date and shall continue for as long as a Subscription Term is in effect (“Term”).

(b) Automatic Renewal. Unless either Client or Kustomer provides the other with written notice of termination at least thirty (30) days prior to an Order’s then current expiration date, this Agreement and Client’s Subscription, including (i) the Subscription Plan; (ii) the quantity of Paid Users (as of the then current expiration date); and (iii) any applicable additional Ancillary Services will renew automatically for successive periods equal to the initial Subscription Term set forth in the associated Order (each, a “Renewal Term”). Upon an automatic renewal, Kustomer may increase the fees applicable to Client’s use of the Services, for any such Renewal Term by up to 5%. If Client objects to the increase, Client must notify Kustomer of Client’s intention not to renew the Order within 30 days of Client’s receipt of notice of the increase from Kustomer. Failure to timely notify Kustomer shall be deemed to constitute consent to the applicable fee increase.

(c) Termination. Either party may terminate this Agreement and all Orders upon prior written notice to the other party if (i) such other party materially breaches any term, condition, representation or warranty contained in this Agreement or an Order and fails to cure such breach within thirty (30) days after delivery of written notice thereof or (ii) such other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, Kustomer may suspend Client’s Subscription or any specific Feature, and/or terminate this Agreement and all Orders hereunder, upon written notice to Client (i) if Client’s account, or any Feature, remains suspended pursuant to Section 3(c) above for fifteen (15) days or more, or (ii) in the event that Kustomer believes, in Kustomer’s sole but reasonable discretion, that Client uses the Services for any purpose or in any manner (A) that violates any applicable local, state or federal law or regulation, or any applicable laws or regulations of any foreign government, (B) that violates Section 4 above, or (C) that violates or infringes upon the rights of any third party.

(d) Effects of Termination. Upon termination or expiration of this Agreement, all Orders and Subscriptions set forth thereunder shall terminate, and Client’s right to access the Services shall cease. If this Agreement is terminated by Client pursuant to Section 6(c) or by Kustomer pursuant to Section 11(a) or 12(i), (i) Client will not be obligated to pay any additional amounts specified in any Order following the effective date of termination and (ii) Kustomer will refund Client the pro-rata amount of any Subscription Fees that Client has actually pre-paid to Kustomer covering the remainder of the Subscription Term after the effective date of termination. In all other cases, and regardless of whether Client uses the Services at the levels reflected in the Order(s) or otherwise, Client will not be entitled to a refund of Fees paid and any unpaid Fees pursuant to any Order will become immediately due and payable.

7. Confidential Information.

To the extent a party (“Discloser”) discloses to the other party (“Recipient”) information in connection with this Agreement, whether disclosed prior to, on, or after the Effective Date, and which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information (collectively “Confidential Information”), the Recipient will protect such Confidential Information from unauthorized use, access or disclosure in the same manner as Recipient protects its own Confidential Information, but with no less than reasonable care.   Except as otherwise expressly permitted pursuant to this Agreement, the Recipient may use the Discloser’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to Recipient’s employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; or (b) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 7 shall control over any non-disclosure agreement by and between the parties entered into prior to the Effective Date and any such non-disclosure agreement shall have no further force or effect with respect to the exchange of Confidential Information after the execution of this Agreement. The foregoing shall not apply to information that: (i) is publicly known at the time of disclosure or subsequently becomes publicly known other than through a breach of this Section 7; (ii) is lawfully received by Recipient from a third party not subject to confidentiality terms with the Discloser with respect to such information; (iii) was independently developed by the Recipient without reference to the Discloser’s Confidential Information, as established by the written records of the Recipient, or (iv) is required to be disclosed under a legal requirement, provided that, in the case of subsection (iv), the Recipient shall: (A) give the Discloser reasonable written notice prior to disclosure pursuant to such requirement (unless prohibited by such requirement); (B) use diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and allow the Discloser to participate in the proceeding; and (C) comply with any applicable protective order or equivalent. Client acknowledges and agrees that the pricing terms in any Order, as well as any Documentation Kustomer provides for, or in connection with, the Services (in whatever form), as well as the Services itself, shall be deemed Kustomer’s Confidential Information. For the avoidance of doubt, information regarding pricing provided or offered to Client by Provider shall be considered Confidential Information.

8. Security and Privacy

(a) Security of the Services. Kustomer will implement and maintain industry-standard administrative, physical and technical safeguards to provide an appropriate level of security, confidentiality and integrity of Client Materials in accordance with Kustomer’s Security and Privacy Documentation, as updated from time to time and accessible via https://www.kustomer.com/security/.

(b) Data Privacy. Client and Kustomer each hereby agree to comply with all applicable state, federal and international laws, regulations, notices, and guidelines relating to information privacy (collectively, “Data Privacy Laws”). To the extent that Client discloses to Kustomer any personal information of, or relating to, any individual, or other information subject to Data Privacy Laws (including in connection with Client’s use of the Services), if required by such laws, Client will notify the affected individual or entity of the intended transfer to Kustomer, and obtain specific written consent from such individual or entity to such transfer. Kustomer will treat all such information in accordance with its then-current Product Privacy Statement, located at https://www.kustomer.com/privacy/statement. Personal data that is subject to certain applicable data protection laws (as defined in the DPA), shall be processed in accordance with the Data Processing Addendum located at https://www.kustomer.com/compliance/dpa, unless Client has a written data processing agreement executed by Kustomer, in which case, such executed data processing addendum shall apply (“DPA”). Such DPA is hereby incorporated into this Agreement by reference.

9. Warranties and Disclaimers.

(a) Kustomer Warranties. Kustomer warrants that (i) the Services will perform materially in accordance with the specifications set forth in the Documentation and in accordance with this Agreement; and (ii) Kustomer will provide the Professional Services in a professional and workmanlike manner and in accordance with the statement of work (or similar document) applicable to such Professional Services. For any breach of a warranty in this Section 9(a), Client’s exclusive remedies are those described in Section 6(c) herein.

(b) General Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, PROFESSIONAL SERVICES, SUPPORT SERVICES OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, OR OTHERWISE (INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS AGREEMENT, KUSTOMER MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY THIRD-PARTY SERVICES, AND CLIENT ACKNOWLEDGES THAT, SUBJECT TO ANY SERVICE LEVEL AGREEMENT BETWEEN THE PARTIES, KUSTOMER DOES NOT WARRANT THAT THE SERVICES (i) WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS; (ii) OPERATE WITHOUT INTERRUPTION; (iii) ACHIEVE ANY INTENDED RESULT; (iv) BE ERROR FREE; OR (v) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH ANY THIRD-PARTY SERVICES. NO INFORMATION OR ADVICE OBTAINED BY CLIENT FROM PROVIDER OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

(c) AI Features. Client acknowledges and agrees that AI Features use experimental technology, and any AI Output may not meet Client’s desired use including, without limitation, that it may be inaccurate, offensive, or duplicative of content generated by AI Features for other clients.  CLIENT IS SOLELY RESPONSIBLE FOR ANY AI CONTENT, INCLUDING THE ACCURACY, QUALITY, APPROPRIATENESS, AND LEGALITY THEREOF, AND WILL ENSURE THAT ITS AI CONTENT AND USE OF THE AI FEATURES DOES NOT (i) VIOLATE ANY APPLICABLE LAW (INCLUDING DATA PRIVACY LAWS AND THOSE GOVERNING THE USE OF GENERATIVE ARTIFICIAL INTELLIGENCE); OR (ii) INFRINGE, VIOLATE, OR MISAPPROPRIATE THE RIGHTS OF KUSTOMER OR ANY THIRD PARTY (INCLUDING CLIENT’S END-CUSTOMERS). CLIENT HEREBY IRREVOCABLY RELEASES, AND AGREES NOT TO SUE, KUSTOMER OR ANY OF ITS AFFILIATES WITH RESPECT TO ANY LIABILITY FOR INFRINGEMENT, MISAPPROPRIATION, INACCURACIES, DAMAGE TO GOODWILL OR REPUTATION, OR VIOLATION OF ANY RIGHTS WITH RESPECT TO THE AI OUTPUT.

(d) Internal AI Features.

Client acknowledges and agrees that Internal AI Features are not intended to be a substitute for human review or independent fact-checking and should only be used to guide and not replace human decision-making. Client shall use discretion when relying on, publishing, distributing, or otherwise using any AI Output resulting from the use of Internal AI Features.

(e) Future Functionality. CLIENT AGREES THAT ITS SUBSCRIPTION PLAN TO THE SERVICES AND FEES DUE OR PAID UNDER ANY ORDER SUBJECT TO THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES. MORE GENERALLY, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THIS AGREEMENT OR AN ORDER.

10. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 10: (a) UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS SUPPLIERS OR AFFILIATED PERSONS OR ENTITIES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING CLAIMS FOR LOSS OF DATA, USE OF OR INABILITY TO USE THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR THE SPECIFIC RESULTS OBTAINED THROUGH THE USE OF THE SERVICES) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR REMEDY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE; AND (b) IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH CLIENT (INCLUDING CLIENT’S AUTHORIZED USERS), KUSTOMER, KUSTOMER’S SUPPLIERS AND AFFILIATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING ARISING HEREUNDER EXCEED THE FEES THAT CLIENT HAS PAID TO KUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

NOTWITHSTANDING THE FOREGOING, TO THE EXTENT SUCH LIABILITY ARISES OUT OF AMOUNTS PAID OR PAYABLE IN CONNECTION WITH EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE SHALL NOT APPLY, AND EACH PARTY’S AGGREGATE LIABILITY SHALL, INSTEAD, NOT EXCEED TWO TIMES (2X) THE FEES THAT CLIENT HAS PAID TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (THE “SUPER CAP”). FURTHER, THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO CLIENT’S PAYMENT OBLIGATIONS TO KUSTOMER UNDER SECTION 3.

THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE PROVISIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR THE SERVICES AND PROFESSIONAL SERVICES.

11. Indemnification.

(a) Indemnification by Kustomer. Kustomer will indemnify, defend and hold Client harmless from and against all claims, suits and/or proceedings brought by any third party against Client resulting from the actual infringement of such third party’s intellectual property rights by the Services, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with the foregoing (“IP Infringement Indemnification”); provided that Client: (i) promptly notifies Kustomer, in writing, of any such claim, suit or proceeding; (ii) cooperates reasonably with Kustomer, at Kustomer’s expense, in the defense and settlement thereof; (iii) allows Kustomer to control the defense and settlement thereof; and (iv) has paid all amounts due under this Agreement and all Orders hereunder as of the date Client notifies Kustomer of any such claim, suit or proceeding and at all times while such IP Infringement Indemnification remains ongoing. If any infringement claim with respect to the Services may be or has been asserted, Client will allow Kustomer, at Kustomer’s option and expense, to: (1) procure for Client the right to continue using the Services; (2) replace or modify the Services to eliminate the infringement while providing functionally equivalent performance; or (3) terminate this Agreement and all Orders hereunder with respect to the Services. Kustomer’s obligations under this Section 11 shall not apply to any claims based upon: (A) any materials, software or other information that have been altered by Client or any party other than Kustomer; (B) the combination of the Services with any items not provided, required or approved by Kustomer, in writing (including in the Documentation); (C) use of the Services or any such materials, software or information after termination pursuant to sub-section (iii) above; (D) any allegation that any AI Output infringes, misappropriates, or otherwise violates a third party’s intellectual property rights; or (E) any allegation that the Services consists of a function, system or method traditionally utilized in customer service oriented software that is not commercially unique to the Services, and the commercially unique aspects of the Services are not identified in the allegation giving rise to the claim. This Section 11 states Client’s exclusive remedy and Kustomer’s sole liability in connection with any claim of infringement or misappropriation of intellectual property rights.

(b) Indemnification by Client. Client will indemnify, defend, and hold Kustomer harmless from and against all claims, suits and/or proceedings brought by any third party against Kustomer, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with or arising out of Client’s or Client’s End User’s use of the Services or alleging that Client Materials infringes or misappropriates such third party’s intellectual property rights; provided that Kustomer: (i) promptly notifies Client, in writing, of any such claim, suit or proceeding; (ii) cooperates reasonably with Client, at Client’s expense, in the defense and settlement thereof; and (iii) allows Client to control the defense and settlement thereof.

12. Miscellaneous.

(a) Independent Parties/Third Party Beneficiaries. Client and Kustomer are independent parties. Nothing in this Agreement will be construed to make either party an agent, employee, franchisee, joint venturer or legal representative of the other party. Neither party will either have, or represent itself to have, any authority to bind the other party or act on its behalf. Nothing in this Agreement is intended or shall be construed as a third party beneficiary agreement, nor shall this Agreement confer, convey or be deemed to accord any rights to any third party.

(b) Force Majeure. If either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected party’s performance will be excused for the resulting period of delay or inability to perform. The affected party must, however, (i) give the other party prompt written notice of the nature and expected duration of such Force Majeure, (ii) use commercially reasonable efforts to mitigate the delay and other effects, (iii) periodically notify the other party of significant changes in the status of the Force Majeure, and (iv) notify the other party promptly when the Force Majeure ends. A Force Majeure will not excuse Client from paying amounts due under any Order subject to this Agreement.

(c) Notices. Any notice under or in connection with this Agreement shall be in writing and shall be sent by nationally recognized (in the country of the sending party) overnight courier or certified mail (return receipt requested) to the address for notice that Client provides in the Order (in the case of notice to Client) and the then-current address of Kustomer’s corporate headquarters set forth on Kustomer’s corporate website at www.kustomer.com (in the case of notice to Kustomer). Additionally, either party may notify the other party via the e-mail address Client provided in an Order (in the case of notice to Client) or via legal@kustomer.com (in the case of notice to Kustomer). Client may change its notice address by written notice to Kustomer, as described above. All notices shall be deemed to have been sufficiently given immediately upon delivery by electronic mail (provided that the sender does not receive a response that the message could not be delivered); or, if otherwise delivered to a party’s physical address upon the earlier of receipt or two (2) business days after being deposited in the mail or with a courier as permitted above. Either party may change its notice address by written notice to the other party by email or otherwise as described above.

(d) Assignment. Client may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without Kustomer’s prior written consent, which will not be unreasonably withheld. Any assignment or attempt to do so other than as provided in this Section 12(d) will be void. Notwithstanding the foregoing, Client may assign this Agreement together with Client’s assignment of all Orders in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Client’s assets or voting securities or similar change of control transaction without Kustomer’s prior written approval. In addition, Kustomer may, without Client’s consent, assign this Agreement to any affiliate or in connection with any merger, reorganization, acquisition or other transfer of all or substantially all of Kustomer’s assets or voting securities or similar change of control transaction.

(e) Waiver, Modification, Severability, Cumulative Remedies, Agreement Drafting, Construction.

(i) Waiver, Modification. Except as otherwise provided herein, any waiver, amendment or other modification of this Agreement will not be effective unless in writing and executed by the parties. No other course of conduct shall operate to waive, amend or modify this Agreement. The waiver by either party of any of its rights or remedies in a particular instance will not be construed as a waiver of the same or different right or remedy in subsequent instances.

(ii) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, it shall either be: (A) revised only to the extent necessary to make it valid, legal and enforceable, and such revision shall not affect the enforceability: (I) of such provision under other circumstances; or (II) of the remaining provisions hereof under any circumstances; or (B) if such revision is not possible, severed from this Agreement and the remainder of this Agreement shall continue in full force and effect.

(iii) Cumulative Remedies. Except as expressly provided to the contrary herein, all remedies set forth in this Agreement are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise.

(iv) Agreement Drafting. Each party has had the opportunity to consult legal counsel with respect to the terms and conditions of this Agreement. This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party based on such party’s drafting of this Agreement.

(v) Construction. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement. Whenever the terms “including” or “include” are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of, the items within such classification.

(f) Publicity. Neither party shall refer to the identity of the other party in promotional material, publications or other forms of publicity relating to its products and services unless the prior written consent of the other party has been obtained; provided, however, that Client agrees that Kustomer may use Client’s name and logo to list Client as a customer on Kustomer’s website and in other marketing materials distributed by Kustomer (which may include web and print materials) at all times subject to any written guidelines that Client may deliver to Kustomer regarding the use of Client’s name and logo unless Client advises Kustomer, in writing, that Client does not consent to such use.

(g) Survival. Sections that by their nature, or to give effect to their meaning, must survive expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement

(h) Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, U.S.A., excluding its conflicts of laws principles. Any controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after the Term, will be brought in the federal or state courts having jurisdiction over New York County, New York, to whose exclusive jurisdiction the parties hereby irrevocably submit for such purposes. Both parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”) and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement.

(i) Changes in Applicable Law. Kustomer may modify the Plan Features and Functions available under any Subscription Plan if, in Kustomer’s sole, reasonable discretion, such modification is required for either Kustomer or Client to comply with applicable laws or regulations. Kustomer shall provide 90 days’ notice prior to implementing such modification, unless a shorter time-period is required by applicable law. Kustomer shall endeavor to ensure that such modifications do not materially decrease the overall functionality of the Services. To the extent such modification has a materially adverse effect on Client’s use of the Services (“Materially Adverse Change”), Client will notify Kustomer of the Materially Adverse Change. Kustomer shall, in its sole discretion, (i) delay the implementation of such Materially Adverse Change, as it relates to Client, until the first day of Client’s next Renewal Term or (ii) terminate this Agreement and all applicable Orders upon ninety (90) days’ notice.

(j) Entire Agreement. This Agreement (including the Order(s)) and any schedules, exhibits and other documents expressly incorporated herein or therein, constitute the complete and entire statement of all terms, conditions and representations of the agreement between Kustomer and Client with respect to its subject matter and supersedes all prior agreements, writings or understandings, whether oral or in writing. No terms or conditions stated in any purchase order or in any other order documentation Kustomer may receive from Client shall be incorporated into, or form any part of, this Agreement, and all such terms or conditions shall be null and void.

(k) Additional Terms for Certain Features. The provision and use of certain Features are subject service-specific supplemental terms, as updated from time to time, and located at https://www.kustomer.com/legal/supplemental-terms/ (the “Supplemental Terms”). Kustomer will notify Client of the Supplemental Terms (if any) applicable to such a Feature via in-app notification or email notification sent to the Client’s designated “Org Owner” and/or “Org Admin.” Client acknowledges that its activation of, continued use of, or access to, such Features after such notification will be considered acceptance of the applicable Supplemental Terms. Notwithstanding any term to the contrary in the Supplemental Terms, Sections 1(a), 1(h), 1(k), 5(b), 9(c), and 9(d) of this Agreement shall control over any conflicting terms in the Supplemental Terms unless this Section 12(k) is explicitly referenced.

(l) Anti-Corruption. Client acknowledges that neither it nor any of its employees or representatives have received or been offered any illegal or otherwise improper bribe, kickback, payment, gift, or thing of value from any of Provider’s employees, representatives or agents in connection with any Order subject to this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Client learns of any violation of the above restriction, Client will use reasonable efforts to promptly notify Kustomer at legal@kustomer.com.

(m) Export; Applicable Laws. Client acknowledges and agrees that the Services may be subject to applicable laws and regulations of the United States and other countries, including but not limited to economic sanctions laws and regulations administered by the Export Administration Regulations of the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions. Client will not: (i) access or use the Services in a U.S.-embargoed or U.S.-sanctioned country or region, (e.g., Crimea – Region of Ukraine, Cuba, Iran, North Korea, Syria or any other country or region embargoed or sanctioned during Client’s use of the Services); (ii) permit access or use of the Services by any individual who is named on any U.S. government or other applicable restricted-party list; or (iii) access or use the Services (or permit access or use of the Services by any individual) otherwise in violation of any sanctions, export or import restrictions, laws, or regulations of the United States or foreign governmental agency or authority.

(n) DMCA. If Client uses the Services for hosting, advertising, sending electronic messages or for the creation and hosting of, or for posting material on, websites powered by Kustomer, Client must (i) comply with any notices received under the Digital Millennium Copyright Act of 1998 or similar statute in other countries (the “DMCA”), (ii) set up a process to expeditiously respond to notices of alleged infringement that comply with the DMCA, (iii) publicly display a description of your notice and takedown process under the DMCA, and (iv) comply with such processes. It is Kustomer’s policy to respond to valid notices of claimed copyright infringement compliant with the DMCA and reserves the right to remove allegedly infringing material in addition to the other remedies set forth in the AUP.

(o) Changes to this Agreement. We may modify this Agreement at any time by posting a revised version at https://www.kustomer.com/legal, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order specifies a fixed Subscription Term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next Renewal Term, if any. In either case, if you object to the updated Agreements, as your sole and exclusive remedy, you may choose not to renew your subscription to the Services.