THESE TERMS OF SERVICE (these “Terms”) GOVERN YOUR (“you” or “your”) ACCESS AND USE THE PLATFORM PROVIDED BY KUSTOMER, INC. (“we,”, “us”, “our” or “Kustomer“). BY ACCEPTING THESE TERMS, EITHER BY CHECKING A BOX AND/OR CLICKING A BUTTON INDICATING YOUR ACCEPTANCE OR OTHERWISE MANIFESTING YOUR ASSENT (the earlier to occur, the “Effective Date”) YOU AGREE TO THE PROVISIONS OF THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, 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 THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE PLATFORM OR RECEIVE ANY SERVICES. To the extent that we are a Processor of Personal Data that is subject to certain Data Protection Laws (as defined in the DPA), the EU Data Processing Addendum located here is hereby incorporated into the Agreement.
You may not access or use the Platform 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.
These Terms were last updated on November 28, 2018. They are effective between you and Kustomer as of the Effective Date.
The following definitions used in these Terms have the corresponding meanings. Additional definitions appear throughout the substantive provisions of these Terms, Order(s), and applicable schedules, exhibits and attachments, if any:
(a) “Agent” means an individual customer-service or other agent permitted, pursuant to an Order, to access the Platform in order to engage with your customers.
(b) “Collaboration User” means an individual permitted, pursuant to an Order, to access the Platform for administrative or other legitimate purposes other than to engage with your customers.
(c) “Documentation” means the applicable specifications and user documentation accompanying the Platform.
(d) “End User” means, collectively, Agents, Seasonal Agents and Collaboration Users.
(e) “Order” means the details regarding your subscription to use the Platform under these Terms, including the Fees associated with your use of the Platform and the number of Agents and (if applicable) Seasonal Agents and Collaboration Users initially licensed and permitted to access the Platform, as designated by you when you initially register to access the Platform, and as further described in Section 2 below. Agents (other than Seasonal Agents) in addition to those licensed through your initial Order can be also be licensed through your routine use of the Platform (“Additional Agents”), the purchase of which shall be deemed a separate Order, subject to the terms and conditions of these Terms.
(f) “Platform” means our software Platform offering set forth in the associated Order, including underlying technology and Documentation.
(g) “Seasonal Agents” means Agents that are licensed for defined durations during a Subscription Term. Except as otherwise provided herein, Seasonal Agents shall be considered Agents hereunder, but may only be licensed pursuant to a manually negotiated and executed Order. No Agent licensed through your routine use of the Platform shall be considered a Seasonal Agent.
(h) “Subscription Term” means the length of time your End Users are authorized and licensed to access and utilize the Platform, as set forth in the associated Order.
2. Platform and Support
We shall provide the Platform set forth and described in each Order. The Order shall set forth, as applicable: (a) Subscription Term; (b) the number of Agents and (if applicable) Seasonal Agents and Collaboration Users licensed and permitted to access the Platform; (c) the associated Fees (defined below) and billing contact information; (d) your method of payment; (e) your identification and contact information; and (f) any additional information, terms and/or conditions. You acknowledge and agree that you are solely responsible for decisions made and actions taken with respect to your and any End User’s use of the Platform. In connection with your use of Platform, we will provide e-mail and on-line support, in accordance with our Standard Support Policy available at https://www.kustomer.com/policy/standard-support/. We may also provide links or references to third-party products and/or services in the Documentation and/or within the Platform. Such third-party products/services are not provided by us, and we are neither liable nor responsible for their functioning, results or effects.
3. Fees and Payment
All charges and fees set forth in an Order (“Fees”) are due at the time of your Order, shall be paid in accordance with the payment method you selected during or during checkout, and are non-refundable. Additional Agents added through your routine use of the Platform shall be authorized through the remainder of the then-current billing period. Fees with respect to any such Additional Agents shall be prorated to reflect the number of days remaining in the billing period during which such Additional Agents were activated. All Fees exclude any sales or use taxes associated with these Terms and any Order, which shall be your responsibility to pay (other than taxes on our income). You acknowledge and agree that you are solely responsible for any such sales and use taxes that result from these Terms and any Order. Unless otherwise set forth in the applicable invoice or Order (in which case you shall remit such taxes to us along with the applicable Fees), you will remit any such taxes due directly to the appropriate governmental agency. You agree to act in compliance with all state, federal and international laws, rules and regulations in connection with any such payment. In the event that your method of payment is declined or fails following authorization of your Order, we may assess a late fee at the rate of one and one-half percent (1½%) per month (or the maximum interest allowable under applicable law, if less) on the Fees until satisfaction of payment. You are liable for all collection fees and expenses, including reasonable attorney fees, relating to and such Fees.
4. Term and Termination
(a) Term. These Terms shall commence on the Effective Date and shall continue for as long as a Subscription Term is in effect. On each anniversary of a Subscription Term, these Terms and the associated Order will renew automatically for successive periods equal to the initial Subscription Term, unless either you or we provide the other with written notice of termination at least thirty (30) days prior to such anniversary.
(b) Termination. Either party may terminate these Terms upon prior written notice to the other party if such other party materially breaches any term or condition of these Terms or an Order and fails to cure such breach within thirty (30) days after receipt of written notice thereof. We may terminate these Terms, upon written notice to you, in the event that we believe, in our sole but reasonable discretion, that: (i) any information you have provided to us is, or during the Term becomes, materially incorrect; (ii) you use the Platform for any purpose or in any manner that violates any local, state, or federal law or regulation, or any applicable laws or regulations of any foreign government, that violates or infringes the rights of any third party, or that constitutes a violation of our Acceptable Use Policy then in effect, the current version of which is available for review at https://www.kustomer.com/policy/acceptable-use/; (iii) you utilize the Platform to store or transmit any materials that contain software viruses, files, code or other harmful components designed to interrupt, destroy or limit the functionality of the Platform or our or any third party’s computer software, systems or infrastructure; or (iv) you utilize the Platform in any manner that imposes or may impose an unreasonable burden or load on the Platform or our infrastructure.
(c) Effects of Termination. Upon termination or expiration of these Terms, all licenses set forth hereunder shall terminate, and your right to access the Platform shall cease. Notwithstanding the foregoing, provided that we have not terminated these Terms pursuant to Section 4(b) above, we will permit you to access the Platform, solely for the purpose of downloading Your Materials (as defined below) for a period of thirty (30) days following the effective date of termination or expiration of these Terms.
5. Confidentiality and Your Materials
(a) Confidential Information. Each party shall keep confidential and shall not use or disclose for any purpose, other than to exercise rights and perform responsibilities hereunder, any information disclosed by the other party to such party in connection with these Terms, whether disclosed prior to, on, or after the Effective Date, 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 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 5(a); (ii) is lawfully received from a third party not subject to confidentiality terms with the disclosing party with respect to such information; (iii) was independently developed by the receiving party without reference to the Confidential Information of the disclosing party, as established by the written records of the receiving party, or (iv) is required to be disclosed under a legal requirement, provided that, in the case of subsection (iv), the receiving party shall: (A) give the disclosing party 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 disclosing party to participate in the proceeding; and (C) comply with any applicable protective order or equivalent. You acknowledges and agrees that the pricing terms in any Order, as well as any Documentation we provide for or in connection with the Platform (in whatever form), as well as the Platform itself, shall be deemed our Confidential Information.
6. License to Platform; Our Intellectual Property
We own all intellectual property rights in and to the Platform. Other than the limited license right to utilize the Platform, nothing contained in these Terms shall be construed as granting you or any End User any rights in or to the Platform. Subject to the terms and conditions of these Terms, we hereby grants you a limited scope, nonexclusive, nontransferable license for you to use and access the Platform for the number of Agents and (if applicable) Seasonal Agents and Collaboration Users set forth in each Order, during the associated Subscription Term, solely for your business purposes and as may be further described in such Order. You may use any Documentation (in whatever medium) that we provide with the Platform, solely in connection with your licensed use of the Platform. You shall administer the registration and password access credentials of your personnel and shall be responsible for any and all use under such credentials. You will indemnify, defend, and hold us harmless in connection with any third party claim against us relating to or arising out of your or any End User’s use of the Platform. You shall not do, attempt to do, nor permit any person or entity to do, any of the following: (a) create or recreate the source code for any underlying software and technology relating to the Platform, or re-engineer, reverse engineer, decompile or disassemble any such underlying software and technology; (b) copy, modify, adapt, translate or create derivative works based upon any such underlying software and technology; (c) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Platform or any Documentation; or (d) sublicense, sell, lease, rent, timeshare or otherwise transfer, or pledge as security, the Platform or its access thereto. All rights (including all intellectual property rights) to and/or with respect to any items, materials or services relating to the Platform not expressly licensed by us hereunder, are expressly and exclusively retained by us. We shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Platform and our services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or on your behalf.
We warrant that we will provide the Platform in a professional and workmanlike manner and in accordance with these Terms and the Order. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE PLATFORM OR SERVICES OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, OR OTHERWISE (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY DISCLAIMED.
8. Limitation of Liability
EXCEPT FOR A BREACH OF OBLIGATIONS UNDER SECTION 5 OR SECTION 6, OR AMOUNTS PAID IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS HEREUNDER: (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 PLATFORM, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR THE SPECIFIC RESULTS OBTAINED THROUGH THE USE OF THE PLATFORM) 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 WE, OUR SUPPLIERS AND AFFILIATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING ARISING HEREUNDER EXCEED THE FEES THAT YOU HAVE PAID TO US UNDER THESE TERMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
9. IP Indemnification
We will indemnify, defend and hold you harmless from and against all claims, suits and/or proceedings brought by any third party against you alleging infringement of such third party’s intellectual property rights by the Platform, 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; provided that you: (a) promptly notifies us, in writing, of any such claim, suit or proceeding; (b) cooperate reasonably with us, at our expense, in the defense and settlement thereof; and (c) allow us to control the defense and settlement thereof. If any infringement claim with respect to the Platform may be or has been asserted, you will allow us, at our option and expense, to: (i) procure for you the right to continue using the Platform; (ii) replace or modify the Platform to eliminate the infringement while providing functionally equivalent performance; or (iii) terminate these Terms with respect to the Platform in exchange for a refund of the pro-rata portion of Fees that you have actually paid to us for the utilization of the Platform corresponding to periods following such termination. Our obligations under this Section 9 shall not apply to any claims based upon: (A) any materials, software or other information that have been altered by you or any party other than us; (B) the combination of the Platform with any items not provided or required by us, in writing (including in the Documentation); or (C) use of the Platform or any such materials, software or information after termination pursuant to sub-section (iii) above. This Section 9 states your exclusive remedy and your sole liability in connection with any claim of infringement or misappropriation of intellectual property rights.
(a) Independent Parties/Third Party Beneficiaries. You and we are independent parties. Nothing in these Terms 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 these Terms is intended or shall be construed as a third party beneficiary agreement, nor shall these Terms confer, convey or be deemed to accord any rights to any third party.
(b) Force Majeure. Neither party will be liable for any failure or delay in performing an obligation under these Terms that is due to causes beyond its reasonable control, such as natural catastrophes, or governmental acts or omissions, laws or regulations. These causes will not excuse you from paying amounts due under these Terms.
(c) Notices. Any notice under or in connection with these Terms shall be in writing and shall be sent by confirmed facsimile, nationally recognized (in the country of the sending party) overnight courier or certified mail (return receipt requested) to the address for notice that you provide in the Order (in the case of notice to you) and the then-current address of our corporate headquarters set forth on our corporate website at www.kustomer.com (in the case of notice to us). Additionally, we may notify you via the e-mail address you provide in the Order. You may change your notice address by written notice to us, as described above.
(d) Assignment. You may not assign or otherwise transfer these Terms or any of your rights or obligations hereunder without our prior written approval, which will not be unreasonably withheld. Any assignment or attempt to do so other than as provided in this Section 10(d) will be void.
(e) Waiver, Modification, Severability, Cumulative Remedies, Agreement Drafting, Construction.
(i) Waiver, Modification. Except as otherwise provided herein, any waiver, amendment or other modification of these Terms will not be effective unless in a physical writing, manually executed by the parties (e.g., no e-mail correspondence or other form of electronic contracting shall serve to amend, modify or waive any portion of these Terms). No other course of conduct shall operate to waive, amend or modify these Terms. 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 these Terms is held to be invalid, it shall either be: (A) revised only to the extent necessary to make it 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 these Terms and the remainder of these Terms shall continue in full force and effect.
(iii) Cumulative Remedies. Except as expressly provided to the contrary herein, all remedies set forth in these Terms are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise.
(iv) 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 these Terms. Whenever the terms “including” or “include” are used in these Terms 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) Survival. Sections that by their nature, or to give effect to their meaning, must survive expiration or termination of these Terms, shall survive any expiration or termination of these Terms.
(g) Governing Law. These Terms 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 these Terms 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 these Terms.
(h) Entire Agreement. These Terms (including the Order) 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 us and you with respect to its subject matter and supersede 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 we may receive from you shall be incorporated into, or form any part of, these Terms, and all such terms or conditions shall be null and void.