Service-specific and other supplemental terms
Capitalized terms not otherwise defined in these supplemental terms (these “Supplemental Terms”) will have the respective meanings assigned to them in the Master Subscription Agreement (or, if applicable, the written master subscription agreement executed by you (“you” or “your” or “Client”) and Kustomer, LLC (formerly Kustomer, Inc.) (“we,”, “us”, “our” or “Kustomer“)) or the Pass-Through Subscription Agreement, as applicable, referred to hereinafter as the “Terms.” We may modify these Supplemental Terms from time to time, subject to Section 11 of the Terms.
These Supplemental Terms are in addition to and supplement the Terms and apply to specific aspects of the Platform as described herein. In the event of any inconsistency between these Supplemental Terms and the Terms, the applicable Supplemental Terms will take precedence. By accepting these terms and conditions on behalf of your company or other legal entity, either by reference in an Order or presented to you prior to your activation of, continued use of, or access to, the applicable feature or functionality below, your use of the Platform constitutes such entity’s binding acceptance of these Supplemental Terms, and you represent that you are authorized to bind such entity to these Supplemental Terms.
A. Supplemental Terms for use of KIQ Features
If your Platform subscription allows you to use and/or access certain artificial intelligence (AI) and machine learning (ML) powered features, including, but not limited to, sentiment analysis, knowledge base deflections, KIQ Customer Assist and AI chatbots, Agent Assist, intent identification, agent suggestions and language detection (collectively, “KIQ Features”) or you otherwise subscribe to or utilize KIQ Features within the Platform, the following supplemental terms apply:
1. General
1.1 Enabling/disabling Certain KIQ Features; Ownership
Instructions for enabling/disabling certain KIQ Features are outlined in the Documentation. The functionality of the KIQ Features shall not be considered a material or core function or feature of the Platform for purpose of calculating any service level credits. Certain KIQ Features are only available with certain subscription plans and/or are subject to supplemental fees or overages as set forth on our pricing page and these supplemental terms.Client’s End 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”). You acknowledge and agree that in addition to the permitted purposes set forth in the Terms, we may access and use Input for the purpose of using our artificial intelligence (AI) and machine learning (ML) powered features to provide the KIQ Features, including to better understand the nature of communications received by you in order to more accurately and efficiently allow you to respond to your end-customers.
As between the parties and to the extent permitted by applicable law, Client retains all ownership of the AI Content and for purposes of the Terms shall be included in Client Materials and Kustomer retains all ownership in and to all system performance data, machine learning algorithms, and aggregated results of such machine learning. Other Clients providing similar Input to the KIQ Features may receive the same or similar Output. Responses received by other Clients are not Client’s AI Content. To the extent Input contains Personal Data (as defined in the Data Processing Addendum), Client instructs and authorizes Kustomer and its Authorized Subprocessors (as defined in the Data Processing Addendum) to Process such Personal Data for the purpose of providing Client with the KIQ Features and Output. Client further acknowledges and agrees that Kustomer, where necessary, will deidentify or anonymize Client Materials and then use them to train the AI and ML powered features strictly for your benefit as part of providing the KIQ Features. Kustomer will not share Client Materials with any other customers in connection with the foregoing and does not permit OpenAI to use the Client Materials to train or improve its models.
1.2 General Restrictions; Compliance with Laws
Certain KIQ Features (e.g. KIQ Customer Assist and AI chatbots) are subject to laws prohibiting misleading consumers about the artificial identity of an automated online account, such as the California Bolstering Online Transparency Act. You understand and agree that you are solely responsible for your operation of the functionality of KIQ Features in compliance with all such applicable laws in all jurisdictions.
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, or violation of any rights with respect to the Output.
Client may not use KIQ Features in any manner that violates the Terms, these Supplemental Terms, 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.
2. KIQ Customer Assist – Premium Assistants
2.1. Definitions
“Premium Assistant” means Kustomer’s chatbot technology that detects message intent and sends derived automated responses to an end-customer, including in some cases using generative AI.
“KIQ Customer Assist” is an AI service offering as part of the Platform that enables AI generated conversations across KIQ Customer Assist supported communication channels, including Chat, WhatsApp and SMS as more fully described here.
“KIQ Conversation” or “KIQC” means a conversation that has at least one back-and-forth message between an end-customer and the Premium Assistant as more fully defined here.
2.2. Pricing and Overages
Your use of KIQ Customer Assist is subject to the usage fees as more fully described here and also within the billing portal. Kustomer shall bill and invoice Client on a monthly basis in arrears at the end of each month based on the number of KIQ Conversations occurring in that month (“KIQC Consumption”) at the applicable published progressive rate based on the amount of your KIQC Consumption in any given calendar month. By enabling or otherwise using KIQ Customer Assist, you are agreeing to pay KIQC Consumption fees. To the extent any such usage fees become past due for any reason, then in addition to any other rights set forth in the Agreement, Kustomer reserves the right to suspend your access to KIQ Customer Assist until such usage fees have been paid.
Kustomer reserves the right to update the KIQ Customer Assist pricing from time to time by updating our pricing page and within the billing portal – such changes shall take effect in the next full calendar month that follows thirty (30) days after such update.
3. KIQ Conversations – Pro Assistants
KIQ Conversations – Pro Assistants are no longer offered for new Clients as of February 1, 2024 and is considered a legacy product offering.*
3.1. Definitions
“Billing Month” means the monthly period of time measured from the monthly anniversary of your Subscription Term Start Date for your subscription (Full Users) to the Kustomer Platform. E.g. if your Subscription Term Start Date is September 9, 2022, your Billing Month is September 9, 2022 to October 8, 2022, and each monthly period thereafter.
“Conversational Assistant” means Kustomer’s chatbot technology that detects message intent and sends derived automated responses to an end-customer.
“ProAssistant” means a type of Conversational Assistant that provides functionality to fully automate conversations with an end-customer.
“KIQ Conversations” is an AI service offering as part of the Platform that enables AI generated conversations across Conversational Assistant supported communication channels, including Chat, WhatsApp and SMS.
“KIQ Conversation” or “KIQC” means a conversation that has at least one back-and-forth message between an end-customer and the Pro Assistant as more fully defined here.
3.2. Pricing and Overages
The pricing for KIQ Conversations bundles is available within the billing portal. Kustomer reserves the right to update the KIQ Conversations pricing from time to time by updating our pricing within the billing portal – such changes shall take effect for any bundles purchased by you after such pricing change and at the time of your Subscription Term renewal for existing bundles purchased prior to such pricing change. Clients can purchase an initial and/or additional bundle(s) at any time by executing an Order or through the Platform functionality within the billing portal. Where you are purchasing initial bundle(s), such change to your plan shall take effect on the day such bundle(s) is purchased and your fees for the first Billing Month shall be pro-rated based on the number of days remaining in the then-current Billing Month from the day such initial bundle(s) is added. Where you are purchasing additional bundle(s), such change to your plan shall take effect on the first day of your then-current Billing Month regardless of which day in the current Billing Month such bundle(s) is purchased. Once you have upgraded your KIQ Conversations plan by adding an initial and/or additional bundle(s), such bundle(s) shall be added to your subscription and be billed per the payment schedule for your subscription to the Kustomer Platform for the remainder of such Subscription Term. If an initial and/or additional bundle(s) are added part way through a current payment schedule, you will be billed on a pro-rated basis based on the number of months remaining in the current payment schedule period, and then in accordance with the payment schedule thereafter. For clarity, once you have upgraded your KIQ Conversation plan by adding an initial and/or additional bundle(s), you cannot remove such bundle(s) from your plan until the end of your Subscription Term for the Kustomer Platform as more fully described in our Documentation.
In the event Client’s monthly allotment(s) of KIQCs is exhausted prior to the end of a Billing Month, Kustomer shall bill and invoice Client on a monthly basis in arrears at the end of each month based on the number of KIQCs used in that month that exceed Client’s monthly allotment of KIQCs (“KIQC Overages”) at the rate published within the billing portal, currently $0.25 per KIQ Conversation. Kustomer reserves the right to update the KIQC Overages pricing from time to time by updating our pricing within the billing portal – such changes shall take effect in the next full calendar month that follows thirty (30) days after such update. By enabling or otherwise using KIQ Conversations, you are agreeing to pay KIQC Overages fees. For clarity, future monthly allotment(s) for purchased bundles cannot be applied against KIQC Overages in a current month.
If you exceed the amount of monthly KIQCs you have purchased under your plan, unless your plan is set to turn KIQC Overages off and suspend KIQ Conversations once your monthly allotment(s) is reached, then the KIQ Conversations service will continue to work and the Pro Assistant will continue to support your end-customers; provided that if you do not timely pay KIQC Overage fees or upgrade your plan by purchasing additional bundles, Kustomer reserves the right to suspend the KIQ Conversations service until such KIQC Overage fees have been paid.
3.3. Unused Monthly Allotment of KIQCs
Unused KIQCs across all monthly bundles shall expire and be forfeited at the end of each Billing Month and shall not roll over into any subsequent month. Client’s monthly bundle(s) of KIQCs shall reset to the monthly limit across all bundles purchased by Client at the beginning of each Billing Month.
4. KIQ for Self-Service
KIQ for Self-Service is no longer offered for new Clients as of November 1, 2022 and is considered a legacy product offering.*
4.1. Definitions
“Annual Billing Period” means each 12 month billing period during the Subscription Term, measured from the Subscription Start Date in your Order; provided, that If KIQ for Self-Service is being purchased with a different Subscription Start Date than your underlying Platform subscription, then the Annual Billing Period shall be pro-rated accordingly to end on each anniversary of the Subscription Term for your underlying Platform subscription.
“Conversational Assistant” means Kustomer’s chatbot technology that detects message intent and sends derived automated responses to an end-customer.
“Fully Automated Conversation (FAC)” means a unique conversation initiated by an end-customer where the Conversational Assistant engaged with the end-customer and did not attempt to transfer the conversation to an End-User (i.e. Client’s agents) within the first 24 hours of the conversation being created and and any one of the following actions occurs: (i) the end-customer answers three or more Conversational Assistant prompts (a prompt is any text message or click of a button sent by the end-customer after a Conversational Assistant starts running in the conversation), or (ii) a knowledge base lookup occurs (the Conversational Assistant reaches the article deflection dialog).
“KIQ for Self-Service” is an AI service offering as part of the Platform that offers FACs across Chat, SMS and WhatsApp per the following functionality:
AI Chatbot for messaging and chat (AI chatbot will be set up pursuant to a statement of work as needed) Email and form deflection
4.2. Overage Charges
KIQ for Self-Service subscription is billed based on the number of FACs enabled through KIQ for Self Service Pricing Tier purchased by you and set forth in the Order (prorated, as applicable, if an Annual Billing Period is less than 12 months based on the number of days in such Annual Billing Period). In the event your annual FAC allotment is exhausted prior to the end of an Annual Billing Period, Kustomer shall bill and invoice you on a monthly basis in arrears at the end of each month until the next Annual Billing Period based on the number of FACs in that month that exceed the annual allotment of FACs (“KIQ-SS Overages”) at the overage rate set forth in your order, or if no such overage fees are explicitly specified in your Order, at our then current list price for such KIQ Features as published in our billing portal. By enabling or otherwise using KIQ for Self-Service, you are agreeing to pay KIQ-SS Overages fees.
Notwithstanding the foregoing, if within thirty (30) days of exceeding your annual allotment of FACs, you can select to upgrade to a higher Pricing Tier based on Kustomer’s published list price (in each case adjusted for the discount % set forth in the Order for the current Pricing Tier) by notifying Kustomer in writing. Such change shall take effect on the date you first exceeded your annual FAC allotment for the remainder of the Annual Billing Period, and if applicable, each subsequent Annual Billing Period for the remainder of the Subscription Term. Once you have upgraded to a different Pricing Tier, you cannot change to a lower Pricing Tier for the remainder of the Subscription Term.
For clarity, the FAC allotment in an applicable KIQ for Self Service Pricing Tier is based on a subscription term of 12 months. If you either upgrade to a higher KIQ for Self Service Pricing Tier during a Subscription Term or purchase an initial subscription to KIQ for Self Service partially way through the Subscription Term of your underlying Platform subscription, the FAC allotment for that Pricing Tier shall be appropriately prorated based on the number of days from the date of such upgrade or initial purchase until the anniversary of the Subscription Term for your underlying Platform subscription.
If you exceed the FAC limits, the KIQ for Self-Service will continue to work; provided that if you do not timely pay KIQ-SS Overage fees or upgrade to a higher Pricing Tier, Kustomer reserves the right to suspend such KIQ functionality.
4.3. Unused Allotment of FACs
Your annual FAC allotment based on the selected Pricing Tier shall expire at the end of each Annual Billing Period. Unused FACs shall not roll over into subsequent Annual Billing Periods.
5. KIQ Agent Assist
5.1. Definitions
“Agent Assist” is an AI service offering as part of the KIQ Features of the Platform that makes available certain functionality provided by OpenAI and other third party providers directly through the Platform to enable AI generated text enhancement, AI powered agent suggestions, language translations and analysis as more fully described here.
“Translated Word” A translated word is equal to 5 characters, including spaces and punctuation. For example, “Return my order” counts as 3 translated words since it equals 15 characters.
5.2 Pricing and Overages
The pricing for Agent Assist is available here and also within the billing portal. Agent Assist includes a monthly pool of translated words as part of your subscription (“Included Translations”). Such Included Translations expire at the end of each calendar month during your Subscription Term and are subject to adjustment for any change to the number of licenses to Agent Assist purchased by Client. Unused Included Translations shall not roll over into any subsequent calendar month and Client shall not be entitled to any credit for Fees paid or owed by Client for licenses to Agent Assist if Client does not use such Included Translations.
Kustomer shall bill and invoice Client on a monthly basis in arrears at the end of each calendar month based on the number of Translated Words used in that calendar month that exceed (if any) Client’s monthly allotment of Included Translations (“Translation Overages”) at the per Translated Word rate set forth here, or if applicable, the per Translated Word discounted rate set forth in any pre-paid contractual commitment entered into between Kustomer and Client. By enabling or otherwise using Agent Assist, you are agreeing to pay Translation Overages fees.
To the extent any such Translation Overages fees become past due for any reason, then in addition to any other rights set forth in the Agreement, Kustomer reserves the right to suspend Client’s access to the Agent Assist service until such Translation Overages fees have been paid.
Kustomer reserves the right to update the Agent Assist and Translated Word pricing from time to time by updating our pricing page and within the billing portal – such changes shall take effect at the time of your Subscription Term renewal for Agent Assist licenses purchased prior to such pricing change.
5.3 Disclaimer
Client acknowledges and agrees that Agent Assist uses 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 Agent Assist for other Clients. Client must use discretion when relying on, publishing, distributing, or otherwise using any Output resulting from the use of Agent Assist as it is not intended to be a substitute for human review, and should only be used to guide and not replace Agent decision-making or relied on without independent fact-checking. AGENT ASSIST IS PROVIDED TO CLIENT “AS IS” WITHOUT ANY INDEMNITIES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE) REGARDING OUTPUTS (INCLUDING OWNERSHIP THEREOF) OR THE ACCURACY OR SUITABILITY FOR CLIENT’S NEEDS OF ANY INFORMATION OBTAINED THROUGH AGENT ASSIST. CLIENT UNDERSTANDS AND AGREES THAT ANY SUCH INFORMATION OBTAINED THROUGH USING AGENT ASSIST IS AT ITS SOLE RISK AND MAY BE INACCURATE OR BIASED. IN NO EVENT WILL KUSTOMER BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING UNDER OR IN CONNECTION WITH AGENT ASSIST, CLIENT’S USE THEREOF OR ANY OUTPUTS GENERATED THEREBY.
B. Supplemental Terms for use of Kustomer Voice
1. Definitions
“Twilio” means Twilio, Inc.
“Kustomer Voice” is a feature that allows Client to make and receive phone calls and to text over SMS and MMS from the Kustomer Platform.
2. Pricing and Fees
Your use of Kustomer Voice is subject to the usage fees as more fully described here and also within the billing portal. Kustomer shall bill and invoice Client on a monthly basis in arrears at the end of each calendar month at the applicable published rate based on the amount of your usage of Kustomer Voice in any given calendar month. By enabling or otherwise using Kustomer Voice, you are agreeing to pay Kustomer Voice usage fees. To the extent any such usage fees become past due for any reason, then in addition to any other rights set forth in the Terms, Kustomer reserves the right to suspend your access to Kustomer Voice until such usage fees have been paid.
If you add or remove phone numbers provisioned to Customer’s account during a given calendar month, you will be billed the full monthly fee for the applicable phone number, regardless of when the phone number is added or removed.
Client acknowledges that Kustomer may charge, and you shall pay, for SMS and MMS messaged sent regardless of whether they have been filtered by your carrier.
Kustomer reserves the right to update the Kustomer Voice pricing from time to time by updating our pricing page and within the billing portal – such changes shall take effect in the next full calendar month that follows thirty (30) days after such update.
3. Client Responsibilities
Client represents and warrants to the following in connection with its use of Kustomer Voice:
(a) Client is solely responsible for Client’s operation of Kustomer Voice in compliance with all applicable laws and regulations in all jurisdictions, including, but not limited to, telephone recording laws, wiretapping laws, and laws and regulations related to telemarketing, robocalling, call spoofing, and spam, such as the Telephone Consumer Protection Act, Do Not Call Implementation Act, the Telemarketing Sales Rule, and CAN-SPAM Act and associated regulations. Client will implement and maintain all policies and procedures required for compliance with any such applicable laws or regulations;
(b) Client is solely responsible for ensuring it has obtained all necessary rights, consents and permissions to collect, store, share and use all Personal Data required by Kustomer to provide Kustomer Voice, including Recordings (as defined below) where enabled. Client is responsible for enabling and disabling the recording and transcript feature (“Recording”) within Kustomer Voice. Recordings are considered Client Materials and Personal Data for the purpose of the Terms and the DPA (as defined in the Terms);
(c) Client will not use Kustomer Voice for (i) telemarketing; robocalling or artificial voice call purposes; (ii) to place calls that violate laws that prohibit unsolicited marketing calls (e.g., telemarketing and “do-not-call” laws); or (iii) to initiate calls using misleading or inaccurate caller ID information to the recipient of a voice call;
(d) To the extent that Client is required to have an address within the jurisdiction or to provide additional information or documentation to purchase or use a phone number for Kustomer Voice within the jurisdiction, Client agrees to provide this information to Kustomer on request. Client further authorizes Kustomer to disclose the provided information to Twilio, any necessary governmental agency or designated industry group, and the telecommunications entities generating the phone number or providing it to Twilio.
(e) As between Client and Kustomer, Client and Client’s End Users are the initiator and sender of any call or SMS/MMS message transmitted through Client’s instance, whether sent manually or by means of an automation; and
(f) Client will defend, hold harmless and indemnify Kustomer from and against any third party claim arising out of or in connection with Client’s use of Kustomer Voice.
4. Twilio Terms and Conditions
By using Kustomer Voice, Client acknowledges, agrees and authorizes Kustomer to use Twilioas an Authorized Subprocessor to process Personal Data required for the provision of Kustomer Voice. Kustomer Voice is subject to restrictions imposed by Twilio and telecommunication carriers, described at the following links:
(a) Twilio Acceptable Use Policy (currently available at: https://www.twilio.com/legal/aup);
(b) Twilio Messaging Policy (currently available at: https://www.twilio.com/legal/messaging-policy);
(c) Twilio Forbidden Message Categories in the US and Canada (Short Code, Toll-Free, and Long Code)(currently available at: https://support.twilio.com/hc/en-us/articles/360045004974-Forbidden-message-categories-for-Toll-Free-SMS-and-MMS-in-the-US-and-Canada );
(d) Twilio U.S. Carrier Penalties for Non-Compliant Messaging (currently available at: https://support.twilio.com/hc/en-us/articles/4410588996123-U-S-Carrier-Penalties-for-Non-Compliant-Messaging); and
(e) any additional terms and policies required by Twilio from time to time or referenced in any of the terms and policies set forth in Section 4 (a)-(e).(collectively, the “Twilio Terms”).
By using Kustomer Voice, Client agrees to and will comply with the Twilio Terms. With respect to United States and Canadian numbers, Twilio collects and monitors the content of text messages in order to detect spam, fraudulent activities, and violations of the Twilio Terms. If Twilio or their telecommunication carriers issue fines or fees to Kustomer based on Client’s violation of the Twilio Terms, Kustomer will pass such fines or fees onto Client and Client agrees to pay such fines or fees and cease any violations going forward, subject to any right Client may have to contest or appeal a such a determination of violation with Twilio or the carrier.
5. Availability
Instructions for enabling/disabling certain Kustomer Voice are outlined in the Documentation. The functionality of Kustomer Voice shall not be considered a material or core function or feature of the Platform for purpose of calculating any service level credits. Certain Kustomer Voice features are only available with certain subscription plans and/or are subject to supplemental fees or overages as set forth on our pricing page and these supplemental terms.
6. Emergency Services
Kustomer Voice does not support calling to suicide prevention hotlines or emergency services (“Emergency Services”). Client agrees not to enable or attempt to use Kustomer Voice to contact Emergency Services. Neither Kustomer or Twilio will be liable held liable for any claim, damages or loss (and you hereby waive any such claim or cause of action) arising out of any use of Kustomer Voice to contact Emergency Services.
7. Suspension
You acknowledge that (a) Kustomer may monitor and periodically audit your use of Kustomer Voice to ensure compliance with the Terms, including these Supplemental Terms, (b) violation of the Twilio Terms may result in Twilio or Kustomer suspending your access to Kustomer Voice; (c) violation of the Terms, including these Supplemental Terms, may result in Kustomer suspending or terminating your access to Kustomer Voice; (d) Kustomer reserves the right to suspend your access to Kustomer Voice or any feature of Kustomer Voice if, in Kustomer’s reasonable discretion, your usage is excessive such that it impacts the operability, integrity, or security of the Platform, and (e) neither Twilio or Kustomer is liable for any loss or damage you suffer or incur as a result of your inability to use Kustomer Voice.
C. Supplemental Terms for use of WhatsApp through Kustomer
The WhatsApp Business Solution is provided by WhatsApp and Meta and requires that you register and create a WhatsApp Business Account (“WABA”) and receive approval from WhatsApp, in its sole discretion, as more fully described here. If your Platform subscription allows you to use and/or access the WhatsApp Business Solution directly through Kustomer (“WhatsApp by Kustomer”) or you otherwise subscribe to or utilize WhatsApp by Kustomer through the functionality of the Platform (e.g. through our Application Marketplace), the following supplemental terms apply:
1. Definitions
“Meta” means Meta Platforms Ireland Limited is the contracting entity offering you access to the WhatsApp Business Solution, unless you are located in the United States, Canada, or Brazil, in which case, Meta Platforms, Inc. is the contracting entity offering you access to the WhatsApp Business Solution.
“WhatsApp Business Solution” means the platform (including, but not limited to apps, software, features, services, and APIs) designed and developed for businesses to enable businesses to communicate with consumer users on the WhatsApp network.
”WhatsApp” means WhatsApp LLC, unless you are in a country in the European Economic Area and any other included country or territory (“European Region”), in which case WhatsApp means WhatsApp Ireland Limited.
2. Pricing and Fees
Your use of WhatsApp by Kustomer is subject to the usage fees as more fully described here, including, but not limited to, the list prices and pricing rules by country and region for user-initiated conversations and business-initiated conversations established by Meta and WhatsApp and published here (the “WhatsApp Rate Card”). Meta and WhatsApp reserve the right to update the WhatsApp Rate Card on a monthly basis, and changes to the WhatsApp Rate Card and any changes to the calculation of your usage fees by Kustomer will take effect the first day of the calendar month following such changes are published to the WhatsApp Rate Card. Notwithstanding anything to the contrary in any Order entered into by you that states a payment schedule for the Platform or any other ancillary services purchased by you, Kustomer will invoice and charge you for your usage fees for WhatsApp by Kustomer in arrears on a calendar month basis based on the payment method you have selected for the WhatsApp by Kustomer service. To the extent any such usage fees become past due for any reason, then in addition to any other rights set forth in the Agreement, Kustomer reserves the right to suspend your access to the WhatsApp by Kustomer until such usage fees have been paid.
To the extent your subscription to the Kustomer Platform includes a monthly pool of user-initiated conversations provided to you without charge (“Included WhatsApp Conversations”), such Included WhatsApp Conversations expire at the end of each calendar month during your Subscription Term and are subject to adjustment for any change to the number of Platform licenses purchase by you in any given month or change to your Platform plan. Unused Included WhatsApp Conversations shall not roll over into any subsequent calendar month and you shall not be entitled to any credit for Fees paid or owed by you for licenses to the Platform if you do not use such Included WhatsApp Conversations for any reason, including but not limited to, (i) not registering and creating a WABA, (ii) any delay in WhatsApp approving your WABA application or (iii) suspension of your access to the WhatsApp Business Solution for any reason.
Kustomer reserves the right to update the WhatsApp by Kustomer pricing from time to time (including the amount of Included WhatsApp Conversations for each Platform plan) by updating our pricing page and within the billing portal – such changes shall take effect in the next full calendar month that follows thirty (30) days after such update.
3. WhatsApp Terms and Conditions
You acknowledge and agree that in order to access and use WhatsApp by Kustomer (and your continued use and access to WhatsApp by Kustomer), you agree to be bound by and to comply with the following terms and policies: (a) these Supplemental Terms;
(b) WhatsApp Business Solution Terms (currently available at: https://www.whatsapp.com/legal/business-solution-terms);
(c) WhatsApp Business Terms of Service (currently available at https://www.whatsapp.com/legal/business-terms/ or https://www.whatsapp.com/legal/business-terms-20210927, as applicable)
(d) WhatsApp’s technical and product documentation (currently available at https://developers.facebook.com/docs/whatsapp/guides); and
(e) WhatsApp Business Messaging Policy (currently available at https://www.whatsapp.com/legal/business-policy); and
(f) Any additional terms and policies required by WhatsApp or Meta from time to time or referenced in any of the terms and policies set forth in Section 3.1(a)-(e).
3.2. Suspension
You acknowledge that (i) violation of such terms and policies may result in WhatsApp suspending your access to the WhatsApp Business Solution; (ii) that WhatsApp or Meta may at any time prohibit your use of the WhatsApp Business Solution; (iii) and that none of WhatsApp, Meta, or Kustomer are liable for any loss or damage you suffer or incur as a result of your inability to use the WhatsApp Business Solution.
D. Supplemental Terms for use of Outbound Chat
1. Definitions
“Billing Month” means the monthly period of time measured from the monthly anniversary of your Subscription Term Start Date for your subscription to the Kustomer Platform. E.g. if your Subscription Term Start Date is September 9, 2022, your Billing Month is September 9, 2022 to October 8, 2022, and each monthly period thereafter.
“Outbound Chat” means a chat conversation that is initiated by Client’s agents with authenticated end-customers as more fully defined here.
2. Pricing and Overages
The pricing for Outbound Chat is available here and also within the billing portal. Certain subscription plans to the Kustomer Platform include a monthly pool of Outbound Chats provided to Client without charge (“Included Outbound Chats”). Such Included Outbound Chats expire at the end of each Billing Month during your Subscription Term and are subject to adjustment for any change to Client’s Platform plan. Unused Included Outbound Chats shall not roll over into any subsequent Billing Month and Client shall not be entitled to any credit for Fees paid or owed by Client for licenses to the Platform if Client does not use such Included Outbound Chats.
Notwithstanding anything to the contrary in any Order entered into by Client that states a payment schedule for the Platform or any other ancillary services purchased by Client, Kustomer shall bill and invoice Client on a monthly basis in arrears at the end of each Billing Month based on the number of Outbound Chats used in that Billing Month that exceed (if any) Client’s monthly allotment of Included Outbound Chats (“Outbound Chat Overages”) at the per Outbound Chat rate set forth here based on Client’s Kustomer Platform plan. By enabling or otherwise using Outbound Chat, you are agreeing to pay Outbound Chat Overages fees.
To the extent any such Outbound Chat Overage fees become past due for any reason, then in addition to any other rights set forth in the Agreement, Kustomer reserves the right to suspend Client’s access to the Outbound Chat service until such Outbound Chat Overage fees have been paid.
Kustomer reserves the right to update the Outbound Chat pricing from time to time (including the amount of Included Outbound Chats for each Platform plan) by updating our pricing page and within the billing portal – such changes shall take effect in the next full Billing Month that follows thirty (30) days after such update.
E. Supplemental Terms for use of Third-Party Services
We provide links or references to Third-Party Services in the Documentation and/or within the Platform, including, but not limited to, WhatsApp by Kustomer and all such other integrations and applications made available in our Application Marketplace accessible from within the Platform. If you decide to enable, access or use Third-Party Services in connection with your Platform subscription allows you to use, the following supplemental terms apply:
1. General
Your access and use of Third-Party Services shall be governed solely by the applicable third-party terms, policies and licenses (the “Third-Party Services Terms”) of such Third-Party Services. Such Third-Party Services are not provided by us; we are neither liable nor responsible for (i) their functioning, results or effects, (ii) their privacy practices, data security processes or other policies and (iii) we do not support, license, control, endorse or otherwise make any representations or warranties regarding any such Third-Party Services.
We 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 Platform in a manner acceptable to us. We will use reasonable efforts to provide you with advance notice prior to disabling access to any Third-Party Services, which may include email, a specific announcement on our website or within the Platform, posting on our blog or by some other similar means.
To the extent you access and use such Third-Party Services in connection with the Platform, you hereby certify that you have agreed to the Third-Party Services Terms, as applicable, and will not use such Third-Party Services in any way that would violate such Third-Party Services Terms.
2. Communication Channels
If you are accessing and using the Platform in connection with an integration to a Third-Party Service that enables you to communicate (e.g. phone, chat, messaging) with individuals, you are responsible for complying with all applicable laws and providing all applicable notices and obtaining applicable consents in all jurisdictions governing your access and use of such Third-Party Services, including, but not limited to, telephone recording laws and laws and regulations related to telemarketing and spam, such as the CAN-SPAM Act, prior to contacting, communicating with, and/or recording or transcribing conversations with such individuals using the Third-Party Service. Additionally, as between you and Kustomer, you or your End Users are the initiator and sender of any call, email or SMS/MMS message transmitted through your End Users’ log in accounts, whether sent manually or by means of an automation functionality within the Platform.
F. Supplemental Terms for Kustomer’s APIs and Kustomer Chat SDK Usage
If you use any of our API(s) and, if applicable, our Chat SDK(s) (as defined below) that we make available to you to facilitate your use of our API(s), in connection with you integrating your application with one or more features of the Platform, the following supplemental terms apply:
“SDK” means any software development kit and/or libraries related to the Platform developed by us and made available to you through the Documentation.
We hereby grant you a limited, non-exclusive, non-transferable (except as permitted by Section 11 of the Terms), revocable license to access and use our API(s) and/or Chat SDK(s) only as necessary to develop, test and support an integration of your application with the Platform. You hereby agree that your use of the API(s) and SDK(s) shall be governed by the Terms, including, without limitation, our ownership rights as set forth in Section 7 of the Terms. YOU EXPRESSLY UNDERSTAND AND AGREE THAT EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 8 OF THE TERMS, YOUR USE OF OUR CHAT SDK(s) IS AT YOUR SOLE RISK AND THAT THE CHAT SDK(s) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM US.
Additionally, you acknowledge that we may modify the API(s) and/or Chat SDK(s) during the Subscription Term. We will provide you with commercially reasonable advance notice of any deprecation of any material API(s) and/or the Chat SDK(s) which may include email, a specific announcement on our website or within the Platform, posting on our blog or by some other similar means.
G. Supplemental Terms for Data and Attachment Storage within the Platform
The Platform (including any replication of your environment (i.e. sandbox)) is subject to a maximum data and attachment storage limits as described here. Your data and attachment storage limits will be determined based on the Kustomer Platform subscription plan purchased by you and your then-current number of full-time users measured at the end of a calendar month.
If the amount of data and/or attachment storage required by you exceeds your subscription plan, we will notify you through an in-platform dashboard and you must either (a) increase your account’s storage limits by purchasing additional data and/or attachment storage or (b) reduce your data and/or attachment storage within your account by removing files and/or records in order to be within the limits of your plan as described here, in each case prior to the end of the then-current month in which you exceeded the limits on your subscription plan. If you neither purchase additional data and/or attachment storage or reduce your data and/or attachment storage within the Platform, as applicable, prior to the end of the calendar month in which you exceeded the limits on your subscription plan, we will invoice you on a monthly basis for the amount of additional data and/or attachment storage at the then-current data and attachment storage fees as described here to raise your limits to the amount you need in order to bring your data storage and/or attachment storage in compliance, and you agree to pay such data and/or attachment storage fees, as applicable. You can reduce the amount of these monthly storage fees for a subsequent calendar month by reducing your data and/or attachment storage fees prior to the end of the then-current calendar month.