THIS MASTER SUBSCRIPTION AGREEMENT (these “Terms”) GOVERNS YOUR (“you” or “your” or “Client”) ACCESS AND USE OF THE PLATFORM PROVIDED BY KUSTOMER, INC. (“we,”, “us”, “our” or “Kustomer“). IF CLIENT REGISTERS FOR A FREE TRIAL OF THE PLATFORM, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THESE TERMS, EITHER BY CHECKING A BOX AND/OR CLICKING A BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS (the earlier to occur, the “EFFECTIVE DATE”) YOU AGREE TO THE PROVISIONS OF THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE DEFINED TERMS “you” and “your” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE PROVISIONS AND CONDITIONS OF THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE PLATFORM OR RECEIVE ANY SERVICES.
You may not access or use the Platform if you are our direct competitor, except with our prior written consent. In addition, you may not access or use the Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Unless otherwise set forth in these Terms, we will treat any information that you provide to us in connection your use of Platform or our provision of services to you in accordance with our Product Privacy Statement in effect at the time that such information is provided, the current version of which is available at https://www.kustomer.com/privacy/statement/, and which is incorporated into these Terms.
The following defined terms used in these Terms have the corresponding meanings. Additional definitions appear throughout the substantive provisions of these Terms, Order(s), and applicable schedules, exhibits and attachments, if any:
(a) “Collaboration User” means an individual permitted to access the Platform for collaboration use only.
(b) “Documentation” means the applicable specifications and user documentation accompanying the Platform as updated from time to time, located at https://support.kustomer.com/ or at such other URL as we may provide from time to time.
(c) “End User” means, collectively, Full Users, Seasonal Users and Collaboration Users, each as identified through an individual End User Login.
(d) “End User Login” means a unique username and password provisioned on an End user-by-End User basis.
(e) “Full User” means an individual customer-service agent or other user permitted to access the Platform in order to engage with your customers or for administrative purposes for the duration of the Subscription Term, each as identified through an individual user login account.
(f) “Order” means an ordering document specifying the details regarding your subscription to use the Platform under these Terms and Professional Services (if applicable), including the Fees associated with your use of the Platform and the number of Full Users and Seasonal Users (if applicable) initially licensed and permitted to access the Platform. End Users in addition to those licensed through your initial Order can also be licensed through your routine use of the Platform (“Additional End Users”), the purchase of which shall be deemed a separate Order, subject to the terms and conditions of these Terms.
(g) “Platform” means our software platform offering and/or ancillary services set forth in the associated Order, including underlying technology and Documentation.
(h) “Professional Services” means the product implementation, training, and/or other professional services to be provided by us to you to the extent purchased by you under an Order and subject to a statement of work applicable to such services.
(i) “Seasonal User” means an individual customer-service agent or other user that is licensed for defined durations during a Subscription Term. Except as otherwise provided herein, Seasonal Users may only be licensed pursuant to a mutually agreed to Order. No individual licensed through your routine use of the Platform shall be considered a Seasonal User.
(j) “Subscription Term” means the length of time you are authorized and licensed to access and utilize the Platform, as set forth in the associated Order.
(k) “Third-Party Services” means connections and/or links to third party websites and/or products or services that we enable you to integrate with and access through the Platform, including, without limitation, via application programming interfaces, workflows or webhooks.
2. Use of the Platform and Support
(a) Purchased Services. We shall provide the Platform set forth and described in each Order. Each Order shall set forth, as applicable: (a) Subscription Term; (b) the number of End Users licensed and permitted to access the Platform; (c) the associated Fees (defined below) and billing contact information; (d) your method of payment; (e) your identification and contact information; and (f) any additional information, terms and/or conditions. You acknowledge and agree that you are solely responsible for decisions made and actions taken with respect to your End User’s use of the Platform. In connection with your use of Platform, we will provide e-mail and on-line support, in accordance with our Standard Support Policy available at https://www.kustomer.com/policy/standard-support/ and/or upgraded support if purchased.
(b) Free Trials. If you register for a free trial to access and use the Platform, we will make certain features and functionality of the Platform available to you and a limited number of End Users on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the Platform; (b) the start date of any subscription to the Platform purchased by you pursuant to an Order; or (c) termination of the free trial by us in our sole discretion. Trial terms and conditions may appear on the free trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding.
THE FREE TRIAL ACCESS TO THE PLATFORM IS INTENDED FOR YOUR INTERNAL BUSINESS USE ONLY AND SHALL NOT BE USED TO COMMUNICATE OR OTHERWISE COLLECT OR UPLOAD ANY INFORMATION FROM YOUR CUSTOMERS OR FROM ANY OTHER INDIVIDUAL WHO IS NOT YOUR EMPLOYEE. ANY DATA YOU ENTER INTO THE PLATFORM (WHETHER DIRECTLY OR INDIRECTLY THROUGH THIRD-PARTY SERVICES), AND ANY CONFIGURATIONS MADE TO THE PLATFORM BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE PLATFORM, OR EXPORT SUCH DATA, BEFORE THE END OF YOUR FREE TRIAL. NOTWITHSTANDING THE “WARRANTIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION” SECTION BELOW, DURING THE FREE TRIAL THE PLATFORM IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY TO YOU OF ANY TYPE WITH RESPECT TO THE PLATFORM FOR THE DURATION OF YOUR FREE TRIAL UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE OUR LIABILITY WITH RESPECT TO THE PLATFORM AND OUR SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100.00 U.S. DOLLARS.
(c) Beta Services and Non-Production Environments. From time to time, to the extent applicable, we may (i) allow you to use the Platform for evaluation, testing or other purposes outside of a production environment (e.g. an API sandbox environment or another non-production service environment) (collectively, “Sandbox Services”) and/or (ii) make services that are not generally available to our customers that are made available to you to try at your option at no additional charge which is labeled “beta,” “pre-release,” “evaluation” or words of similar import (collectively, “Beta Services”). By using the Sandbox Services on such a non-production basis and/or the Beta Services on such evaluation basis in you sole discretion, you accept the Sandbox Services and 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 you and we may discontinue Beta Services at any time in our sole discretion and may never make them generally available.
(d) Third-Party Services. We may also provide links or references to Third-Party Services in the Documentation and/or within the Platform, including, but not limited to, integrations and applications made available in the our Application Marketplace (available at https://www.kustomer.com/product/integrations/. Such Third-Party Services are not provided by us, and we are neither liable nor responsible for their functioning, results or effects. You may be required to purchase a license to such Third-Party Services and are responsible for complying with all third party terms, policies and licenses applicable between you and such third party governing your access to and use of Third-Party Services. We do not support, license, control, endorse or otherwise make any representations or warranties regarding any Third-Party Services.
3. Fees and Payment
All charges and fees for the services set forth in an Order or for services added or incurred pursuant to your routine use of the Platform (or otherwise subsequent to you initial Order) (collectively “Fees”) are due and payable as specified in such Order and are non-refundable except as expressly set forth in these Terms. All Fees exclude any sales or use taxes associated with these Terms and any Order, which shall be your responsibility to pay (other than taxes on our income). You acknowledge and agree that you are solely responsible for any such sales and use taxes that result from these Terms and any Order. Unless otherwise set forth in the applicable invoice or Order (in which case you shall remit such taxes to us along with the applicable Fees), you will remit any such taxes due directly to the appropriate governmental agency. You agree to act in compliance with all applicable state, federal and international laws, rules and regulations in connection with any such payment. In the event that your method of payment is declined or fails following authorization of your Order, we may assess a late fee at the rate of one and one-half percent (1½%) per month (or the maximum interest rate allowable under applicable law, if less) on the Fees until satisfaction of payment. You are liable for all collection fees and expenses, including reasonable attorney fees, relating to collecting overdue Fees.
4. Term and Termination
(a) Term. These Terms shall commence on the Effective Date and shall continue for as long as a Subscription Term is in effect.
(b) Renewal. Unless either you or we provide the other with written notice of termination at least thirty (30) days prior to an Order’s then current expiration date, these Terms and your subscription to the Platform and your number of current End User licenses (as of the then current expiration date) will renew automatically for successive periods equal to the initial Subscription Term set forth in the associated Order (each, a “Renewal Order Term”). Unless otherwise provided for in an Order, we may increase the fees applicable to your subscription to the Platform and any ancillary services for any such Renewal Order Term by up to the greater of 5% or a percentage equal to the increase for the prior 12-month period (or the prior period of the same duration as the Renewal Order Term, if longer) in the CPI – All Urban Consumers (U.S. All Items), as published by the U.S. Bureau of Labor Statistics. If you object to the increase, you must notify us of your intention not to renew the Order within 30 days of your receipt of notice of the increase from us. Failure to timely notify us 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, or 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, we may suspend your access to the Platform and/or terminate these Terms and all Orders hereunder, upon written notice to you, (i) if you fail to pay any amount due under an Order, and such failure continues more than thirty (30) days after delivery of written notice thereof; or (ii) in the event that we believe, in our sole but reasonable discretion, that you use the Platform for any purpose or in any manner that violates any applicable local, state, or federal law or regulation, or any applicable laws or regulations of any foreign government, that violates or infringes the rights of any third party, or that constitutes a violation of our Acceptable Use Policy then in effect, the current version of which is available for review at https://www.kustomer.com/policy/acceptable-use/.
(d) Effects of Termination. Upon termination or expiration of these Terms, all Orders and licenses set forth thereunder shall terminate, and your right to access the Platform shall cease. Notwithstanding the foregoing, provided that you have paid all amounts due under these Terms and all Orders hereunder, we will permit you to access the Platform, solely for the purpose of downloading Client Materials (as defined below) for a period of thirty (30) days following the effective date of termination or expiration of these Terms, provided that your access and use will continue to be subject to these Terms and you shall not access or use the Platform other than to access and download Client Materials. If these Terms are terminated by you pursuant to Section 4(c) or by us pursuant to Section 10(a), (i) you will not be obligated to pay any additional amounts specified in any Order following the effective date of termination and (ii) we will refund you the pro-rata amount of any subscription Fees that you have actually pre-paid to us covering the remainder of the Subscription Term after the effective date of termination. In all other cases, and regardless of whether you use the Platform at the levels reflected in the Order(s) or otherwise, you will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable.
5. Confidential Information
To the extent a party (“Discloser”) discloses to the other party (“Recipient”) information in connection with these Terms, whether disclosed prior to, on, or after the Effective Date, and which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information (collectively “Confidential Information”), the Recipient will protect such Confidential Information from unauthorized use, access or disclosure in the same manner as Recipient protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the Recipient may use the Discloser’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information (a) solely to Recipient’s employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; or (b) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 5 shall control over any non-disclosure agreement by and between the parties entered into prior to the Effective Date and any such non-disclosure agreement shall have no further force or effect with respect to the exchange of Confidential Information after the execution of this Agreement. The foregoing shall not apply to information that: (i) is publicly known at the time of disclosure or subsequently becomes publicly known other than through a breach of this Section 5; (ii) is lawfully received by Recipient from a third party not subject to confidentiality terms with the Discloser with respect to such information; (iii) was independently developed by the Recipient without reference to the Discloser’s Confidential Information, as established by the written records of the Recipient, or (iv) is required to be disclosed under a legal requirement, provided that, in the case of subsection (iv), the Recipient shall: (A) give the Discloser reasonable written notice prior to disclosure pursuant to such requirement (unless prohibited by such requirement); (B) use diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and allow the Discloser to participate in the proceeding; and (C) comply with any applicable protective order or equivalent. You acknowledge and agree that the pricing terms in any Order, as well as any Documentation we provide for or in connection with the Platform (in whatever form), as well as the Platform itself, shall be deemed our Confidential Information.
6. Ownership, Security and Privacy of Client Materials
As between you and us, all information and materials provided by you or on your behalf in connection with your use of Platform (collectively, “Client Materials”), are and shall remain your property, including any modifications or derivative works thereof and, to the extent applicable, shall be deemed your Confidential Information. You hereby grant us a limited license to use, copy, modify and create derivative works of and from Client Materials, solely as necessary for us to provide the Platform in accordance with the terms and conditions of these Terms and any Order. You acknowledge that we collect and aggregate anonymous data concerning Platform user behavior, traffic and other interactive and telemetric information. Such anonymous data does not identify you or any End User or other individual, and no such identity can be derived from such data. You agree that both during and after the Term, we may retain and use all such anonymous data to improve and market the Platform and our services. We will implement and maintain industry-standard administrative, physical and technical safeguards to provide an appropriate level of security, confidentiality and integrity of ClientMaterials in accordance with our Security and Privacy Documentation, as updated from time to time and accessible via https://www.kustomer.com/security/. You and we 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 you disclose to us any personal information of, or relating to, any individual, or other information subject to Data Privacy Laws (including in connection with your use of the Platform), if required by such laws, you will notify the affected individual or entity of the intended transfer to us, and obtain specific written consent from such individual or entity to such transfer. We will treat all such information in accordance with our then-current Product Privacy Statement, located at https://www.kustomer.com/privacy/statement/. Except with respect to a free trial, to the extent that we are a processor of personal data that is subject of certain applicable data protection laws (as defined in the DPA), the Data Processing Addendum located at https://www.kustomer.com/compliance/dpa/ is hereby incorporated into these Terms.
7. License to Platform; Our Intellectual Property
We own all intellectual property rights in and to the Platform. Subject to the terms and conditions of these Terms, we hereby grant you a limited scope, nonexclusive, nontransferable license for you to use and access the Platform during the associated Subscription Term in accordance with limitations set forth in these Terms and all applicable Orders (e.g. for the number of authorized End Users set forth in each Order or added during the applicable Subscription Term of an Order and any usage volume limits), solely for your business purposes and as may be further described in such Order. You may use any Documentation (in whatever medium) that we provide with the Platform, solely in connection with your licensed use of the Platform. Other than the limited license right to utilize the Platform granted herein, nothing contained in these Terms shall be construed as granting you or any End User any rights in or to the Platform.
Access to and use of the Platform is restricted to the specified number of individual End Users permitted under your subscription to the Platform. You agree and acknowledge that each End User Login shall only be used by one (1) designated individual End User. You further agree and acknowledge that an End User Login cannot be shared or used by more than one individual, but that End User Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Platform. You shall administer the registration and password access for End User Login credentials of your personnel and shall be responsible for maintaining the confidentiality of and any and all use under such End User Login credentials.
You shall not do, attempt to do, nor permit any person or entity to do, any of the following: (a) create or recreate the source code for any underlying software and technology relating to the Platform, or re-engineer, reverse engineer, decompile or disassemble any such underlying software and technology; (b) copy, modify, adapt, translate or create derivative works based upon any such underlying software and technology; (c) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Platform or any Documentation; or (d) sublicense, sell, lease, rent, timeshare or otherwise transfer, or pledge as security, the Platform or its access thereto. All rights (including all intellectual property rights) to and/or with respect to any items, materials or services relating to the Platform not expressly licensed by us hereunder, are expressly and exclusively retained by us. We shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Platform and our services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or on your behalf.
8. Warranties and Disclaimers
(a) We warrant that (i) the Platform will perform materially in accordance with the specifications set forth in the Documentation and in accordance with the Terms; and (ii) we will provide the Professional Services in a professional and workmanlike manner and in accordance with the statement of work applicable to such Professional Services. For any breach of a warranty in this section, your exclusive remedies are those described in Section 4(c) herein.
(b) EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE PLATFORM OR SERVICES OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, OR OTHERWISE (INCLUDING ANY WARRANTY OF 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 THESE TERMS, WE MAKE NO REPRESENTATION OR WARRANTY, AND HAVE NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY THIRD-PARTY SERVICES, AND YOU ACKNOWLEDGE THAT, SUBJECT TO ANY SERVICE LEVEL AGREEMENT BETWEEN THE PARTIES, WE DO NOT WARRANT THAT THE PLATFORM (a) WILL MEET YOURS OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH ANY THIRD-PARTY SERVICES. NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
(c) YOU AGREE THAT YOUR SUBSCRIPTION TO THE PLATFORM AND FEES DUE OR PAID UNDER ANY ORDER SUBJECT TO THESE TERMS 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 THESE TERMS, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THESE TERMS OR AN ORDER.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 9: (a) UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS SUPPLIERS OR AFFILIATED PERSONS OR ENTITIES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING CLAIMS FOR LOSS OF DATA, USE OF OR INABILITY TO USE THE PLATFORM, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR THE SPECIFIC RESULTS OBTAINED THROUGH THE USE OF THE PLATFORM) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR REMEDY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE; AND (b) IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH YOU (INCLUDING YOUR END USERS), WE, OUR SUPPLIERS AND AFFILIATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING ARISING HEREUNDER EXCEED THE FEES THAT YOU HAVE PAID TO US UNDER THESE TERMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO YOUR PAYMENT OBLIGATIONS TO US UNDER SECTION 3, OR AMOUNTS PAID OR PAYABLE IN CONNECTION WITH THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 10. THE PROVISIONS OF THIS SECTION 9 ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE PROVISIONS IN DETERMINING TO ENTER INTO THESE TERMS AND THE PRICING FOR THE PLATFORM AND PROFESSIONAL SERVICES.
(a) Indemnification by Us. We will indemnify, defend and hold you harmless from and against all claims, suits and/or proceedings brought by any third party against you alleging infringement of such third party’s intellectual property rights by the Platform, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with the foregoing; provided that you: (a) promptly notifies us, in writing, of any such claim, suit or proceeding; (b) cooperate reasonably with us, at our expense, in the defense and settlement thereof; and (c) allow us to control the defense and settlement thereof. If any infringement claim with respect to the Platform may be or has been asserted, you will allow us, at our option and expense, to: (i) procure for you the right to continue using the Platform; (ii) replace or modify the Platform to eliminate the infringement while providing functionally equivalent performance; or (iii) terminate these Terms and all Orders hereunder with respect to the Platform. Our obligations under this Section 10 shall not apply to any claims based upon: (A) any materials, software or other information that have been altered by you or any party other than us; (B) the combination of the Platform with any items not provided, required or approved by us, in writing (including in the Documentation); or (C) use of the Platform or any such materials, software or information after termination pursuant to sub-section (iii) above. This Section 10 states your exclusive remedy and our sole liability in connection with any claim of infringement or misappropriation of intellectual property rights.
(b) Indemnification by You. You will indemnify, defend, and hold us harmless from and against all claims, suits and/or proceedings brought by any third party against us, 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 your or your End User’s use of the Platform or alleging that Client Materials infringes or misappropriates such third party’s intellectual property rights; provided that we: (a) promptly notifies you, in writing, of any such claim, suit or proceeding; (b) cooperate reasonably with you, at your expense, in the defense and settlement thereof; and (c) allow you to control the defense and settlement thereof.
(a) Independent Parties/Third Party Beneficiaries. You and we are independent parties. Nothing in these Terms will be construed to make either party an agent, employee, franchisee, joint venturer or legal representative of the other party. Neither party will either have, or represent itself to have, any authority to bind the other party or act on its behalf. Nothing in these Terms is intended or shall be construed as a third party beneficiary agreement, nor shall these Terms confer, convey or be deemed to accord any rights to any third party.
(b) Force Majeure. 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, (a) give the other party prompt written notice of the nature and expected duration of such Force Majeure, (b) use commercially reasonable efforts to mitigate the delay and other effects, (c) periodically notify the other party of significant changes in the status of the Force Majeure, and (d) notify the other party promptly when the Force Majeure ends. A Force Majeure will not excuse you 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 you provide in the Order (in the case of notice to you) and the then-current address of our corporate headquarters set forth on our corporate website at www.kustomer.com (in the case of notice to us). Additionally, either party may notify the other party via the e-mail address you provided in an Order (in the case of notice to you) or via email@example.com (in the case of notice to us). 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. You may not assign or otherwise transfer these Terms or any of your rights or obligations hereunder without our 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, you may assign these Terms together with your assignment of all Orders in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of your assets or voting securities or similar change of control transaction without our prior written approval. We may, without your consent, assign these Terms to any affiliate or in connection with any merger, reorganization, acquisition or other transfer of all or substantially all of our assets or voting securities or similar change of control transaction.
(e) Waiver, Modification, Severability, Cumulative Remedies, Agreement Drafting, Construction.
(i) Waiver, Modification. Except as otherwise provided herein, any waiver, amendment or other modification of these Terms will not be effective unless in a physical writing, manually executed by the parties (e.g., no e-mail correspondence or other form of electronic contracting shall serve to amend, modify or waive any portion of these Terms). No other course of conduct shall operate to waive, amend or modify these Terms. The waiver by either party of any of its rights or remedies in a particular instance will not be construed as a waiver of the same or different right or remedy in subsequent instances.
(ii) Severability. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, t shall either be: (A) revised only to the extent necessary to make it valid, legal and enforceable, and such revision shall not affect the enforceability: (I) of such provision under other circumstances; or (II) of the remaining provisions hereof under any circumstances; or (B) if such revision is not possible, severed from these Terms and the remainder of these Terms shall continue in full force and effect.
(iii) Cumulative Remedies. Except as expressly provided to the contrary herein, all remedies set forth in these Terms are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise.
(iv) Agreement Drafting. Each party has had the opportunity to consult legal counsel with respect to the terms and conditions of these Terms. These Terms will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party based on such party’s drafting of the terms.
(v) Construction. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and shall not affect the interpretation or construction of these Terms. Whenever the terms “including” or “include” are used in these Terms in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of, the items within such classification.
(f) 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 you agree that we may use your name and logo to list you as a customer on our website and in other marketing materials distributed by us (which may include web and print materials) at all times subject to any written guidelines that you may deliver to us regarding the use of your name and logo unless you advise us, in writing, that you do 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. These Terms will be governed by and interpreted in accordance with the laws of the State of New York, U.S.A., excluding its conflicts of laws principles. Any controversy or claim arising out of or relating to these Terms or the existence, validity, breach or termination thereof, whether during or after the Term, will be brought in the federal or state courts having jurisdiction over New York County, New York, to whose exclusive jurisdiction the parties hereby irrevocably submit for such purposes. Both parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”) and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to these Terms.
(i) Entire Agreement. These Terms (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 us and you with respect to its subject matter and supersede all prior agreements, writings or understandings, whether oral or in writing. No terms or conditions stated in any purchase order or in any other order documentation we may receive from you shall be incorporated into, or form any part of, these Terms, and all such terms or conditions shall be null and void.
(j) Additional Features. If we offer additional features or functionality that are available or enabled through the Platform, with or without charge, we will notify you of supplemental terms (if any) applicable to such additional features or functionality prior to your activation of or access to such additional features or functionality. Your activation of, or access to, such additional features or functionality will be considered acceptance of the applicable supplemental terms where applicable. The supplemental terms are currently available at https://www.kustomer.com/legal/supplemental-terms/.
(k) Anti-Corruption. You acknowledge that neither you nor any of your employees or representatives have received or been offered any illegal or otherwise improper bribe, kickback, payment, gift, or thing of value from any of our 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 you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify us at firstname.lastname@example.org.
(l) Changes to these Terms. We may modify these Terms at any time by posting a revised version at https://www.kustomer.com/legal/terms/, 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.