Master subscription agreement for usage-based plans

(a) “Authorized User” means any individual granted access to the Services by Client,

(b) “Billable Conversation” means a conversation using the Services that has at least one inbound message and does not qualify as spam as more fully described at https://help.kustomer.com/billable-conversation-rJ8wVoqbye.

(c) “Commitment Period” means the length of time during which the Committed Conversations can be consumed. The initial Commitment Period begins on the Subscription Start Date, as specified in the applicable Order. Subsequent Commitment Periods shall immediately follow the end of the prior Commitment Period.

(d) “Committed Conversations” means the quantity of Billable Conversations Client has agreed to pre-purchase per Commitment Period, as specified in the applicable Order.

(e) “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.

(f) “Order” means an ordering document specifying the details regarding Client’s subscription to use the Services under these Terms and Professional Services (if applicable), including the Fees associated with Client’s use of the Services. Client may also enable ancillary services 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 these Terms.

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

(h) “List Price” means the price specified at https://www.kustomer.com/features/usage-based-pricing/, https://www.kustomer.com/features/additional-fees/, or in the Documentation, as applicable.

(i) “Services” means the proprietary software-as-a-service solution provided by Kustomer, including underlying technology and Documentation.

(j) “Per Conversation Rate” means the amount Client will pay per Billable Conversation, as specified in the applicable Order.

(k) "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. A list of Plan Features and Functions that correspond to each Subscription Plan may be found at https://www.kustomer.com/usage-based-pricing/. Each individually, a “Feature.” Kustomer may from time to time modify the Plan Features and Functions of the Subscription Plan but shall not materially reduce the functionality thereof.

(l) “Professional Services” means the product implementation, training, 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.

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

(n) “Subscription” means Client’s right, subject the terms and conditions of these Terms, 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.

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

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

(q) “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.

(r) "Third-Party Services” means connections and/or links to third party websites and/or products or services that Kustomer enables Client to integrate with and access through the Services, including, without limitation, via application programming interfaces, workflows or webhooks.

(a) Provision of the Services. During the Subscription Term, and subject to the terms and conditions of these Terms, Kustomer shall provide to Client, and Client is hereby granted the right to access and use the Services in accordance with the Subscription Plan during the Subscription Term. The Subscription Plan and Committed Conversations purchased by Client for the Services determines the Plan Features and Functions that Client is entitled to use. To the extent any limits to a Feature are calculated based on the quantity of Committed Conversations (“Variable Feature”), any limits to such Variable Feature shall be calculated based solely on the number of Committed Conversations. For the avoidance of doubt, In the event Client consumes all Committed Conversations, any additional Billable Conversations will not impact any limits to the Variable Feature.

(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 in connection with the Services, solely in connection with Client’s permitted use of the Services. Other than the Subscription, nothing contained in the Terms shall be construed as granting Client or any Authorized User any right in or to the Services. All rights (including all intellectual property rights) to and/or with respect to any items, materials or services relating to the Services not expressly licensed by Kustomer hereunder, are expressly and exclusively retained 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" or words of similar import (collectively, “Beta Services”). By using the Beta Services on such evaluation basis in Client’s sole discretion, Client accepts the Beta Services on an “as is” basis and acknowledge that Kustomer provides no express or implied warranties, indemnities or security or privacy 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 these Terms. 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.

(e) 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.

(a) Fees. All charges and fees for the Services (“Fees”) are due and payable as specified in such Order and are non-refundable except as expressly set forth in these Terms. 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.

(b) Early Renewal. In the event that the parties execute a new Order to renew the Subscription prior to the end of the then-current Subscription Term (“Early Renewal”), the parties will reconcile the Billable Conversations consumed by Client with the Fees received by Kustomer as of the date of the Early Renewal (“True-Up”). If Client has consumed more Billable Conversations than Client has paid in Fees for Billable Conversations, Kustomer will invoice Client for the difference.

(c) Taxes. All Fees exclude any sales or use taxes associated with these Terms 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 these Terms 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.

(d) Subscription Suspension. Except where expressly stated otherwise in these Terms or the Supplemental Terms (as defined below), Kustomer shall have the right to: (i) suspend Client’s Subscription if Client fails to pay any amount due under these Terms, 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 Usage Fees or Overage Fees related to such Feature, and such failure continues more than five (5) days after delivery of written notice thereof.

(e) 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. Soley 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 (or any successor field).

(f) 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.

(g) 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 these Terms. Kustomer will not charge Client interest or suspend access to the Services for unpaid Disputed Fees, unless you fail to cooperate diligently with Kustomer or Kustomer determines the dispute is not reasonable nor brought in good faith by Client.

(a) Acceptable Use Policy. Client represents and warrants that it will comply with and ensure its Authorized Users will comply with Kustomer’s Acceptable Use Policy (“AUP”) available at https://www.kustomer.com/policy/acceptable-use/, as updated from time to time.

(b) Prohibited Uses. 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; or (v) interfere with or disrupt the integrity, security or performance of the Services or any third-party data contained therein; (vi) attempt to bypass, exploit, defeat or disable limitations or restrictions placed on the Services by Kustomer; or (vii) use the Service in a manner that violates any applicable laws, regulations, or third party rights.

(c) Authorized Users. 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 User’s and shall be responsible for maintaining the confidentiality of and any and all use under such Authorized User.

(d) Technical Controls. If Client’s use of the Services or any Feature materially degrades the performance of the Services or any Feature for other clients, Kustomer may impose rate limiting controls on a temporary basis.

(e) Metering Usage. Client shall not attempt to bypass, circumvent, override, or otherwise manipulate or interfere with Kustomer’s metering of Client’s usage of the Services. Kustomer reserves the right to audit Client’s usage in order to ensure compliance with this Section 4(f). If Kustomer, in its sole reasonable discretion finds that Client has taken actions to circumvent Kustomer’s accurate metering of Client’s usage, Kustomer may issue and Client shall pay a True-Up invoice to correct for any underpayment.

(f) OpenAI Policies. Client may not use such KIQ Features in any manner that violates any OpenAI policy, including their Usage Policies, Sharing & Publication Policy, and Community Guidelines, or any other third party terms, guidelines, policies or the like to which Kustomer links in connection with generation of Output.

(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, solely as necessary for Kustomer to provide the Services in accordance with the terms and conditions of these Terms and any Order. 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, Support Services or Professional Services.

(b) AI Content. Client’s Authorized Users and end-customers may provide Client Materials for use with KIQ Features ("Input") and receive output generated and returned by such KIQ Features based on the Input ("Output", and together with Input, "Al 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 these Terms 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 Input to the KIQ Features may receive the same or similar Output. Output received by other clients are not Client’s AI Content.

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

(b) 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, these Terms and Client’s Subscription (including the Committed Conversations) will renew automatically for successive periods equal to the initial Subscription Term set forth in the associated Order (each, a “Renewal Term”). Unless otherwise provided for in an Order, Kustomer may increase the fees applicable to Client’s use of the Services, including the Per Conversation Rate and any rates applicable to any ancillary 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 these Terms and all Orders hereunder upon prior written notice to the other party if (i) such other party materially breaches any term, condition, representation or warranty contained in these Terms 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 Plan Features and Functionality, and/or terminate these Terms and all Orders hereunder, upon written notice to Client, (i) if Client’s account, or any Feature, remains suspended pursuant to Section 3(d) above for thirty (30) 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 these Terms, all Orders and Subscriptions set forth thereunder shall terminate, and Client’s right to access the Services shall cease. If these Terms is terminated by Client pursuant to Section 6(c) or by Kustomer pursuant to Section 11(a), (i) except to the extent Kustomer is entitled to a True-Up to align actual Billable Conversations with amounts paid by Client for Billable Conversation and to the extent Kustomer is entitled to Usage Fees or Overage Fees for actual usage, 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 Fees that Client has actually pre-paid to Kustomer for usage not consumed. 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 outstanding will become immediately due and payable.

(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 Platform), 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. To the extent that Kustomer is a processor of personal data that is subject of certain applicable data protection laws (as defined in the DPA), the Data Processing Addendum (“DPA”) located at https://www.kustomer.com/compliance/dpa is hereby incorporated into these Terms.

(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 these Terms; 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 PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

(c) KIQ Features. Client acknowledges and agrees that KIQ Features use experimental technology, and any Output may not meet Client’s desired use including, without limitation, that it may be inaccurate, offensive, or duplicative of content generated by KIQ 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 KIQ 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 OUTPUT.

(d) Future Functionality. CLIENT AGREES THAT ITS SUBSCRIPTION 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.

(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 alleging 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; 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; and (iii) allows Kustomer to control the defense and settlement thereof. 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 these Terms 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); or (C) use of the Services or any such materials, software or information after termination pursuant to sub-section (iii) above. 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 Authorized 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.

(a) Independent Parties/Third Party Beneficiaries. Client and Kustomer 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. If either party is prevented from performing, or is unable to perform, any of its obligations under these Terms 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 these Terms.

(c) Notices. Any notice under or in connection with these Terms 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. Neither party may assign or otherwise transfer these Terms or any of its rights or obligations hereunder without the other party’s prior written consent, which will not be unreasonably withheld. Any assignment or attempt to do so other than as provided in this Section 11(d) will be void. Notwithstanding the foregoing, Client may assign these Terms 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 these Terms 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.

(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 provider, 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 these Terms, shall survive any expiration or termination of these Terms.

(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 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.

(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 provided 90 days’ notice prior 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 these Terms and all applicable Orders upon (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, these Terms, and all such terms or conditions shall be null and void.

(k) Additional Terms for Certain Features. The provision and use of certain Features (including certain ancillary services) are subject to service-specific supplemental terms. Kustomer will notify Client of supplemental terms (if any) applicable to such features or functionality by including or incorporating them into an Order via hyperlink or other reference or presenting them prior to Client’s activation of, continued use of, or access to, such Feature. Client’s activation of, continue use of, or access to, Feature will be considered acceptance of the service-specific supplemental terms, as applicable. The service-specific supplemental terms, as updated from time to time, are currently available at https://www.kustomer.com/legal/conversation-supplemental-terms/.

(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 these Terms. 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 these Terms. We may modify these Terms 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 Order Term, if any. In either case, if you object to the updated Terms, as your sole and exclusive remedy, you may choose not to renew your subscription to the Platform. For the avoidance of doubt, any Order is subject to the version of the Terms in effect at the time of such Order.