Service-specific and other supplemental terms usage-based plans

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 Subscription Plan allows you to use and/or access KIQ Customer Assist Premium or KIQ Agent Assist (collectively, “Legacy KIQ Features”), the following supplemental terms apply:

1. General

2. KIQ Customer Assist - Premium Assistants

3. KIQ Agent Assist

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

D. 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.

E. 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.

F. 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.