Kustomer AI

" (b) Renewal. Unless either Client or Provider provides the other with written notice of termination at least thirty (30) days prior to an Order’s then current expiration date, these Terms and Client’s subscription to the Platform and Client’s 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, Provider may increase the fees applicable to Client’s subscription to the Platform and any ancillary services for any such Renewal Order Term by up to 5%. If Client objects to the increase, Client must notify Provider of Client’s intention not to renew the Order within 30 days of Client’s receipt of notice of the increase from Provider. Failure to timely notify Provider shall be deemed to constitute consent to the applicable fee increase."

"We may modify these Terms at any time by posting a revised version at https://www.kustomer.com/legal , which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order specifies a fixed Subscription Term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next Renewal Order Term, if any. In either case, if you object to the updated Terms, as your sole and exclusive remedy, you may choose not to renew your subscription to the Platform."

"Additionally, Provider may suspend Client’s access to the Platform, impose rate limitations on one or more services and/or terminate these Terms and all Orders hereunder, upon written notice to Client, (i) if Client fails to pay any amount due under an Order, and such failure continues more than fifteen (15) days after delivery of written notice thereof; or (ii) in the event that Provider believes, in Provider’s sole but reasonable discretion, that Client uses 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 Provider’s Acceptable Use Policy then in effect, the current version of which is available for review at https://www.kustomer.com/policy/acceptable-use/"

"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 CLIENT (INCLUDING CLIENT’S END USERS), PROVIDER, PROVIDER’S SUPPLIERS AND AFFILIATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING ARISING HEREUNDER EXCEED THE FEES THAT CLIENT HAS PAID TO PROVIDER 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 CLIENT’S PAYMENT OBLIGATIONS TO PROVIDER UNDER SECTION 3."

"Client will indemnify, defend, and hold Provider harmless from and against all claims, suits and/or proceedings brought by any third party against Provider, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with or arising out of Client’s or Client’s End User’s use of the Platform or alleging that Client Materials infringes or misappropriates such third party’s intellectual property rights; provided that Provider: (a) promptly notifies Client, in writing, of any such claim, suit or proceeding; (b) cooperates reasonably with Client, at Client’s expense, in the defense and settlement thereof; and (c) allows Client to control the defense and settlement thereof."

" NOTWITHSTANDING THE FOREGOING, TO THE EXTENT SUCH LIABILITY ARISES OUT OF AMOUNTS PAID OR PAYABLE IN CONNECTION WITH EITHER PARTIE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE SHALL NOT APPLY, AND EACH PARTY’S AGGREGATE LIABILITY SHALL, INSTEAD, NOT EXCEED TWO TIMES (2X) THE FEES THAT CLIENT HAS PAID TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (THE “SUPER CAP”)."

" Client 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 Provider hereunder, are expressly and exclusively retained by Provider. Provider shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Platform and Provider’s services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or on Client’s behalf."

"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."

" (d) Effects of Termination. Upon termination or expiration of any applicable Orders, licenses set forth thereunder shall terminate, and Client’s right to access the Platform pursuant to such Order shall cease. If these Terms are terminated by Client pursuant to Section 4(c) or by Provider pursuant to Section 10(a), (i) Client will not be obligated to pay any additional amounts specified in any Order following the effective date of termination and (ii) Provider will refund Client the pro-rata amount of any subscription Fees that Client has actually pre-paid to Provider covering the remainder of the Subscription Term after the effective date of termination. In all other cases, and regardless of whether Client uses the Platform at the levels reflected in the Order(s) or otherwise, Client will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable."

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

" (n) Changes to these Terms. We may modify these Terms at any time by posting a revised version at https://www.kustomer.com/legal , which modifications will become effective as of the first day of the calendar month following the month in which they were first posted; provided, however, that if an Order specifies a fixed Subscription Term of 12 months or longer, the modifications will instead be effective immediately upon the start of the next Renewal Order Term, if any. In either case, if you object to the updated Terms, as your sole and exclusive remedy, you may choose not to renew your subscription to the Platform."

" (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, Provider may suspend Client’s access to the Platform, impose rate limitations on one or more services and/or terminate these Terms and all Orders hereunder, upon written notice to Client, (i) if Client fails to pay any amount due under an Order, and such failure continues more than fifteen (15) days after delivery of written notice thereof; or (ii) in the event that Provider believes, in Provider’s sole but reasonable discretion, that Client uses 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 Provider’s Acceptable Use Policy then in effect, the current version of which is available for review at https://www.kustomer.com/policy/acceptable-use/ ."

" (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."

" All charges and fees for the services set forth in an Order or for services added or incurred pursuant to Client’s routine use of the Platform (or otherwise subsequent to Client’s 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 Client’s responsibility to pay (other than taxes on Provider’s income). Client acknowledges and agrees that Client is solely responsible for any such sales and use taxes that result from these Terms and any Order. Unless otherwise set forth in the applicable invoice or Order (in which case Client shall remit such taxes to Provider along with the applicable Fees), Client will remit any such taxes due directly to the appropriate governmental agency. Client agrees to act in compliance with all applicable state, federal and international laws, rules and regulations in connection with any such payment. Any past due Fees are subject to a late fee at the rate of one and one-half percent (1½%) per month (or the maximum interest rate allowable under applicable law, if less) on past due Fees until satisfaction of payment. Client is liable for all collection fees and expenses, including reasonable attorney fees, relating to collecting overdue Fees."

" (c) CLIENT AGREES THAT ITS 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."

" (d) Third-Party Services. Provider 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 Provider’s Application Marketplace (available at https://www.kustomer.com/product/integrations/ . Such Third-Party Services are not provided by Provider, and Provider is neither liable nor responsible for (i) their functioning, results or effects or (ii) their privacy practices, data security processes or other policies. Client may be required to purchase a license to such Third-Party Services and is responsible for complying with all third party terms, policies and licenses applicable between Client and such third party governing Client’s access to and use of Third-Party Services. Provider does not support, license, control, endorse or otherwise make any representations or warranties regarding any Third-Party Services and cannot guarantee the continued availability of such Third-Party Services, and may disable access to them without entitling you to any refund, credit or other compensation, if, for example and without limitation, the provider of a Third-Party Service ceases to make the Third-Party Service available for interoperation with the Platform in a manner acceptable to Provider. Provider will use reasonable efforts to provide Client with advance notice prior to disabling access to any Third-Party Services, which may include email, a specific announcement on Provider's website or within the Platform, posting on a blog or by some other similar means."

" (a) Provider warrants that (i) the Platform will perform materially in accordance with the specifications set forth in the Documentation and in accordance with these Terms; and (ii) Provider 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, Client’s 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, PROVIDER MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY THIRD-PARTY SERVICES, AND CLIENT ACKNOWLEDGES THAT, SUBJECT TO ANY SERVICE LEVEL AGREEMENT BETWEEN THE PARTIES, PROVIDER DOES NOT WARRANT THAT THE PLATFORM (a) WILL MEET CLIENT’S 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 CLIENT FROM PROVIDER OR THROUGH THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS."