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, AI chatbots, 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:
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.
You acknowledge and agree that in addition to the permitted purposes set forth in the Terms, we may access and use Client Materials submitted to the Platform and KIQ Features 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, and further acknowledge and agree that Kustomer, where necessary, will deidentify or anonymize Client Materials 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. You retain all ownership of the Client Materials submitted to the Platform in connection with the KIQ Features and Kustomer retains all ownership in and to all system performance data, machine learning algorithms, and aggregated results of such machine learning.
Certain KIQ Features (e.g. 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.
2. KIQ Conversations
“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.
“Conversational Assistant Pro” 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 Conversational Assistant Pro as more fully defined here.
2.2 Pricing and Overages
The pricing for KIQ Conversations bundles is available here and also within the billing portal. Kustomer reserves the right to update the KIQ Conversations pricing from time to time by updating our pricing page and within the billing portal – such changes shall take effect for any bundles purchased by you after such pricing change and at the time of the 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 purchashed. 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 of $0.25 per KIQ Conversation. 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 Conversational Assistant Pro 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.
2.3 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.
3. KIQ for Self-Service
KIQ for Self-Service is no longer offered as of November 1, 2022 and is considered a legacy plan.*
“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
3.2 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. 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.
3.3 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.
* Commencing on November 1, 2022, Client’s who are only subscribed to our introductory free tier (KIQ Tier 0) as indicated on your Order will have those KIQ Tier 0 subscriptions converted to our KIQ Conversations add-on service and will receive a KIQ Conversation 500/month Bundle (subject to the KIQ Conversations supplemental terms above) at no charge until the end of your current Subscription Term regardless of the number of the introductory FACs that you have used to date. Additionally, all Clients now receive our Assistant Lite functionality as part of your subscription to our Kustomer Platform – Enterprise plan or Ultimate plan. More details on our Assistant Lite functionality can be found here.
B. 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:
“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.
3. WhatsApp Terms and Conditions
3.1. Acceptance of 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.
C. Supplemental Terms for use of Outbound Chat
“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.
1. 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.
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:
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 Storage within the Platform
The Platform (including any replication of your environment (i.e. sandbox)) is subject to a maximum data storage limit as described here. Your data storage limit will be determined based on the Kustomer Platform subscription plan purchased by you.
If the amount of data storage required by you exceeds your subscription plan, we will notify you and you must either (a) increase your account’s storage limits by purchasing excess data storage or (b) reduce your data storage within your account by removing files and/or records in order to be within the limits of your plan. If you do not either purchase excess data storage or reduce your data storage within the Platform within thirty (30) days notice after notice thereof, we will invoice you the then-current data storage fees for such excess use and you agree to pay such data storage fees.