This Master Subscription Agreement (“Agreement”) is between Builderson Group Limited (“Fyncall,” “we,” “us,” or “our”) and you (if you act in your individual capacity) or the company, organization, or other legal entity on behalf of which you act as an authorized representative (in either case, “Customer,” “you,” or “your”).
This Agreement governs (a) Customer’s subscription to access and use Fyncall’s conversational commerce platform, software-as-a-service, and related services, including but not limited to application programming interfaces, mobile integrations, messaging channel integrations, and add-ons to which Customer subscribes (collectively, the “Services”) under the applicable subscription plan(s) selected by Customer and described (i) at https://www.fyncall.com/pricing or (ii) in the applicable Order Form (as applicable, the “Subscription Plan”) and (b) the Authorized Users’ (as defined below) access to and use of the Services. The terms of the Subscription Plan(s) are hereby incorporated by reference herein.
The parties may also enter into one or more Order Forms referencing this Agreement. Unless otherwise specified, all such Order Forms shall be governed by this Agreement. In the event of a conflict between this Agreement and an Order Form, the Order Form shall control with respect to the subject matter therein.
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN CUSTOMER AND FYNCALL. BY USING THE SERVICES, SELECTING A SUBSCRIPTION PLAN, ENTERING IN AN ORDER FORM, OR OTHERWISE SUBSCRIBING TO OR CONTRACTING FOR THE SERVICES, OR AUTHORIZING OR PERMITTING ANY AUTHORIZED USERS TO ACCESS OR USE THE SERVICES, CUSTOMER AGREES TO BE LEGALLY BOUND TO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THIS ELECTRONIC AGREEMENT WILL HAVE THE SAME LEGAL FORCE AND EFFECT AS IF IT WERE IN PAPER FORM WITH CUSTOMER’S WRITTEN SIGNATURE.
If you are an individual entering into this Agreement in your individual capacity, you represent to Fyncall that you are at least 18 years old and have the legal capacity to be bound by this Agreement; if you are an individual entering into this Agreement on behalf of a company, organization, or other legal entity, you represent to Fyncall that you have the authority to bind such entity to this Agreement. If the foregoing (as applicable) is not true, or if Customer does not agree with the terms and conditions in this Agreement, Customer must not use nor authorize any use of the Services.
Certain Services and features of Services may be subject to supplemental terms and conditions unique to such Services or features (“Supplemental Terms”). Supplemental Terms do not replace this Agreement, but rather augment the terms and conditions of this Agreement. Supplemental Terms will be binding only if expressly agreed to by the Customer. If there is any inconsistency or conflict between the terms of this Agreement (as it may be amended from time to time) and any other agreement regarding Customer’s use of the Services (including Supplemental Terms, a service order, or a purchase order), the terms of such other agreement will control, but only with respect to the subject matter covered by such other agreement.
1. DEFINITIONS
“Affiliate” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of, such entity, whether through the ownership of voting securities, by contract, or otherwise.
“AI Conversation” means a conversation thread between an End Customer and the Services wherein the AI functionality of the Services actively generates and sends at least one response message to the End Customer. A conversation is counted only once per conversation thread, regardless of the number of AI-generated messages within that thread. Human-agent-only conversations are not counted as AI Conversations.
“Authorized User” means any individual who is an employee, consultant, service provider, contractor, or agent of Customer and that is granted access to the Services by Customer, solely in support of Customer’s internal business purposes and operation of Customer’s e-commerce business.
“Commerce Channel” means the messaging platforms through which the Services enable conversational commerce, including but not limited to WhatsApp Business API, Instagram Direct Messages, and such other messaging channels as may be supported by Fyncall from time to time.
“Customer Data” means all data, content, and information stored by or on behalf of Customer or at Customer’s direction in the Services, including but not limited to product information, customer communications, order data, and transaction information.
“Documentation” means Fyncall’s documentation relating to the Services found at https://docs.fyncall.com, as may be updated by Fyncall from time to time.
“E-commerce Platform” means the third-party e-commerce platform(s) with which Customer’s online store is built and operated, including Shopify and such other platforms as may be supported by Fyncall from time to time.
“End Customer” means Customer’s customers, consumers, or prospective customers who interact with Customer’s business through the Commerce Channels enabled by the Services.
“Supplemental Terms” means additional terms and conditions that apply to your access and use of certain features or functionality when you purchase, use, or enable such features or functionality.
2. PROVISION OF THE SERVICES
2.1 Provision Generally
During the Term (as defined below), Fyncall will provide Customer access to the subscribed Services based on Customer’s applicable Subscription Plan (such access, “Subscription”), in accordance with this Agreement and any Supplemental Terms, in each case as updated from time to time. This Agreement does not cover professional services, implementation services, or custom development work, which may be provided under a separate agreement between Fyncall and Customer.
2.2 Grant of Rights
Subject to compliance with the terms and conditions of this Agreement, including payment of fees, the eligibility requirements set forth in Section 2.4, and the restrictions and requirements set forth in Section 2.5, Fyncall hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to: (a) access and use, and allow such number of Authorized Users as permitted under the applicable Subscription Plan to access and use, the Services solely for Customer’s internal business purposes in operating Customer’s e-commerce business and providing conversational commerce experiences to End Customers; (b) enable End Customers to interact with Customer’s business through the Commerce Channels as facilitated by the Services; and (c) download, install, and use any Fyncall-branded software applications, browser extensions, or mobile applications provided by Fyncall to enable access to and use of the Services (“Applications”) solely in connection with Customer’s authorized use of the Services as provided in clause (a) of this Section 2.2, in each case of (a) through (c) only during the Term. All rights not expressly granted to Customer in this Agreement are reserved by Fyncall and its licensors. There are no implied rights or licenses granted to Customer under this Agreement or any other agreement concerning the Services.
2.3 E-commerce Platform and Commerce Channel Integration
Customer acknowledges and agrees that: (a) the Services require integration with one or more E-commerce Platforms and Commerce Channels; (b) Customer is responsible for maintaining valid accounts and complying with the terms of service of such E-commerce Platforms and Commerce Channels; (c) Customer must have all necessary rights, permissions, and authorizations to integrate the Services with Customer’s E-commerce Platform account and Commerce Channel accounts; (d) Fyncall’s ability to provide the Services depends on the availability and functionality of such third-party platforms and channels; and (e) Customer grants Fyncall all necessary permissions to access Customer’s E-commerce Platform data and Commerce Channel accounts as required to provide the Services.
2.4 Excess Use and Overage Charges
2.4.1 Monthly Conversation Limits
If Customer’s use of the Services exceeds the volume of AI Conversations included in the applicable Subscription Plan during any monthly billing period (“Excess Conversations”), Customer will be charged an overage fee of $0.15 USD per Excess Conversation, in addition to the base Subscription Fees. Overage charges will be automatically calculated and billed at the end of each monthly billing period in which Excess Conversations occurred.
2.4.2 Authorized User Limits
If Customer’s number of Authorized Users exceeds the number permitted under the applicable Subscription Plan (“Excess Users”), then Customer will either (a) upgrade such Subscription Plan to accommodate such Excess Users (such upgraded Subscription Plan, the “Upgraded Plan”) or (b) remain on the same Subscription Plan and pay Fyncall, in addition to any and all other payment obligations of Customer, the difference between: (i) the amounts applicable to the Upgraded Plan that would accommodate the Excess Users and (ii) the amounts paid or payable by Customer for the Subscription Term(s) during which there were Excess Users, in each case of (a) and (b) promptly upon the earlier of Fyncall’s notifying Customer of the Excess Users and Customer’s becoming aware of the Excess Users. For clarity, Customer will remain responsible for all excess charges incurred under the original Subscription Plan up to the effective date of the Upgraded Plan. For further clarity, an Upgraded Plan is a Subscription Plan and, accordingly, terms applicable to a Subscription Plan in this Agreement will apply to the Upgraded Plan.
2.4.3 Plan Modifications
Customer may upgrade its Subscription Plan at any time during a Subscription Term. Customer may not downgrade its Subscription Plan during the Initial Term. Downgrades may only occur at renewal; provided, however, that for customers on a monthly Subscription Term (if applicable), any downgrade must be requested no fewer than five (5) days prior to the end of the then-current monthly billing period.
2.5 Eligibility Requirements
Customer represents and warrants that Customer meets the following minimum requirements to subscribe to the Services: (a) Customer operates a legitimate e-commerce business and has the necessary rights and authority to enter into and perform the obligations required in this Agreement; (b) Customer has valid accounts in good standing with any E-commerce Platform and Commerce Channels with which Customer integrates the Services; (c) all information that Customer provides, including information provided during registration, information about Customer and Customer’s business, End Customers, products, and all relevant payment information, is within Customer’s right to use and provide to us, and is and will remain accurate, complete, and current; (d) Customer will access and use the Services in compliance with all applicable laws and regulations, including all applicable laws and regulations pertaining to e-commerce, consumer protection, data privacy, electronic communications, anti-spam, and marketing; (e) none of the Customer Data will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic, or obscene content or material; (f) Customer’s business and use of the Services complies with the terms of service of all applicable E-commerce Platforms and Commerce Channels; and (g) Customer will provide Fyncall with any and all information, records, and/or materials requested to verify compliance with the eligibility requirements set forth in this Agreement.
2.6 Service Restrictions and Requirements
(a) Restricted Use
Except as expressly permitted under this Agreement, including any Supplemental Terms, Customer will not (and will not authorize any third party to): (i) use the Services to develop or market any product, software, or service that is functionally similar to or derivative of the Services, or for any other purpose not expressly permitted herein; (ii) access or use the Services except as envisioned by the Services in their normal operation or as specified in the Documentation; (iii) license, sublicense, sell, resell, distribute, rent, lease, transfer, assign, time share, service bureau, post, link, disclose, or otherwise commercially exploit the Services, directly or indirectly, to any third party other than as permitted hereunder with respect to End Customers and Authorized Users; (iv) alter, modify, debug, reverse engineer, decompile, disassemble, reproduce, copy, or otherwise attempt to derive or gain access to any software (including source code) associated with the Services, including the Applications; (v) use the Services to send unsolicited commercial communications, spam, or messages in violation of applicable anti-spam or marketing laws and regulations, including but not limited to the CAN-SPAM Act, GDPR, PDPA, or other applicable laws; (vi) use the Services in any manner that violates the terms of service or acceptable use policies of any E-commerce Platform or Commerce Channel; (vii) use tracking technologies to track individuals or user behavior in violation of applicable privacy laws; or (viii) falsely imply any sponsorship by or association with Fyncall other than as a subscriber of the Services.
(b) Commerce Channel Compliance
Customer acknowledges and agrees that: (i) Customer is solely responsible for complying with all terms of service, policies, and guidelines of the Commerce Channels, including without limitation WhatsApp Business Policy, Instagram Terms of Use, and any messaging limits or restrictions imposed by such platforms; (ii) violations of Commerce Channel policies by Customer may result in suspension or termination of Customer’s access to such Commerce Channels, which may affect the Services; (iii) Fyncall is not responsible for any such suspensions or terminations caused by Customer’s violations; and (iv) Customer will immediately notify Fyncall of any warnings, restrictions, or enforcement actions taken by Commerce Channels against Customer’s accounts.
(c) API and Password Protection
Customer will keep all passwords, API keys, access tokens, and authentication credentials provided to it safe and secure and will be responsible for all use of the Services using such credentials issued to Customer. Customer will notify Fyncall immediately of any actual or reasonably suspected unauthorized use of its credentials for the Services. Without limiting any of its other rights or remedies (including, without limitation, under Section 8.1), Fyncall reserves the right to suspend access to the Services if Fyncall reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement (in which case, Fyncall will endeavor to provide Customer prompt written notice of such suspension and an opportunity to cure, as practical and reasonable under the circumstances).
2.7 Customer Support and Cooperation
We will use commercially reasonable efforts to make the subscribed Services available 24 hours a day, 7 days a week, except during (a) Planned Downtime, (b) Force Majeure Events (as defined below), and (c) outages or disruptions caused by E-commerce Platforms or Commerce Channels. Customer’s Subscription Plan includes, at no additional cost to Customer, standard customer support for the subscribed Services, as may be detailed in the related Documentation. Customer may be able to procure (i) support beyond standard customer support and (ii) priority support or dedicated account management by subscribing to an Upgraded Plan. Customer will cooperate with Fyncall as reasonably necessary for Fyncall to provide the Services and support in accordance with this Agreement, which may include providing Fyncall reasonably requested information about Customer’s e-commerce operations, products, and End Customer service requirements. For purposes of this Section 2.7, “Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.
2.8 Modification of Services
Fyncall retains the right to modify the Services, including the Applications and any features and functionality of the Services, during the Term. If such modification materially deprecates a core feature or functionality of the subscribed Services (excluding modifications required to comply with Commerce Channel policy changes or E-commerce Platform API changes), Customer may terminate the applicable Subscription in accordance with the cancellation procedures identified in Section 7.5 and receive a pro-rata refund for any pre-paid base Subscription Fees (excluding overage charges) for Services not provided after that termination.
2.9 Technical Requirements
To access and use the Services, Customer is responsible, at its own expense, for: (a) obtaining Internet access and any applicable hardware, software, and data communications services required to connect to the Services; (b) maintaining valid and active accounts with the E-commerce Platform(s) and Commerce Channel(s) Customer intends to use with the Services; (c) ensuring Customer has the necessary permissions and authorizations from such platforms and channels to integrate the Services; and (d) procuring and maintaining the network infrastructure, communications services, and updated browser, operating system, and other software that enable secure access to the Services and use of the Applications, including as explained in the Documentation. Customer acknowledges that a high-speed Internet connection is required for proper transmission of the Services. Fyncall is not responsible for any Customer or third-party software and hardware that are not provided by Fyncall, or for any compromise of any data, including Customer Data, transmitted using systems and telecommunications facilities that are not owned, operated, or controlled by Fyncall. Customer’s access to and use of any Fyncall Technology (as defined below) is subject to the restrictions and policies implemented by Fyncall from time to time with respect to such technologies, as provided in the Documentation or communicated to Customer.
2.10 Customer Personal Data
To the extent that Fyncall processes any personal data of End Customers or other individuals on behalf of Customer (“Customer Personal Data”), the terms of the Data Processing Addendum (“DPA”) available at https://www.fyncall.com/dpa are hereby incorporated into and form part of this Agreement. Customer acknowledges that conversational commerce inherently involves processing End Customer personal data and communications.
3. CUSTOMER DATA AND USAGE DATA
3.1 Customer Data
Customer is solely responsible for all data, content, and information that the Customer and Authorized Users input into the Services or that is transmitted to the Services through the E-commerce Platform or Commerce Channel integrations (all such data, content, and information, “Customer Data”). Customer Data includes, without limitation, product catalogs, pricing information, inventory data, order information, customer communications, customer contact information, transaction data, and any other data provided to or generated through use of the Services. Fyncall does not guarantee, and Customer is solely responsible for reviewing and assessing, the accuracy, integrity, and quality of Customer Data. Customer will not do any of the following and will ensure that no Authorized User does any of the following: (A) upload or otherwise make available to Fyncall any Customer Data that is unlawful or that violates the rights of any third parties; (B) upload or otherwise make available to Fyncall any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation, contractual obligation, or other restriction; (C) use, upload, or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (D) upload or otherwise make available to Fyncall any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (E) interfere with or disrupt the Services or servers or networks connected to the Services; (F) upload or otherwise make available, or permit the upload to Fyncall of, any Customer Data that constitutes “protected health information” under the Health Insurance Portability and Accountability Act or any regulation, rule, or standards issued thereunder, or that constitutes similarly protected information under any applicable rule or regulation; (G) violate any applicable law, rule, or regulation, including those regarding e-commerce, consumer protection, data privacy, electronic communications, anti-spam, marketing, export or re-export of technical data, or the terms of service of any E-commerce Platform or Commerce Channel; or (H) use the Services to send deceptive, misleading, or fraudulent communications to End Customers. Fyncall will have no liability under this Agreement for any protected health information supplied by Customer or any Authorized User, notwithstanding anything to the contrary in this Agreement or under applicable laws. Customer will keep its Customer Data current, accurate, and complete. Customer acknowledges and understands that Fyncall may rely on Customer Data to provide the Services and to send notices, statements, and other information to Customer via email or through Customer’s account.
3.2 Usage Data
Customer acknowledges that the use of the Services generates data, such as system logs, query logs, and data relating to: the configuration (including, without limitation, E-commerce Platform and Commerce Channel integrations) and operation of the Services; Customer’s and the Authorized Users’ use of, and interactions with, the Services (including the Applications); End Customer interactions with the Services; conversation flows and patterns; AI model performance metrics; and support provided in connection with the Services (such data, collectively, “Usage Data”). Notwithstanding anything to the contrary in this Agreement, Fyncall will collect and may use Usage Data to develop, improve, support, and operate its products and services, including training and improving AI models used in the Services, without providing any compensation to Customer or to any third party. Fyncall may also analyze Customer Data and data of other customers to create aggregated statistics or data that do not identify Customer or any specific End Customer, Authorized User, or other individual (“Aggregate Data”). Fyncall may, during and after the Term, use and share such Aggregate Data and Usage Data in its discretion and without providing any compensation to Customer or to any third party. Solely as permitted under applicable law, Fyncall owns and controls all Usage Data and Aggregate Data, subject to applicable data protection laws and regulations. To the extent any ownership rights in or to Usage Data and/or Aggregate Data vest in Customer or any Authorized User(s), Customer hereby assigns, on behalf of itself and the applicable Authorized User(s), to us all rights (including intellectual property rights), title, and interest in and to same.
4. FEEDBACK AND AI FUNCTIONALITY
4.1 Feedback
Notwithstanding anything to the contrary herein, to the extent that Customer or an Authorized User at any time provides Fyncall with any suggestions, enhancement requests, recommendations, or other feedback regarding the Services, including potential improvements or changes thereto (collectively, “Feedback”), Customer hereby grants, on behalf of itself and the applicable Authorized User(s), to Fyncall and its Affiliates a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable, and perpetual license to implement, modify, commercially exploit, incorporate into the Services, and otherwise use (including on a non-confidential basis) any such Feedback in any manner Fyncall chooses, including, without limitation, as described in Section 4.2. Fyncall has the right to seek intellectual property protection for any features, functionality, or components that may be based on Feedback in its own name. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
4.2 Machine Learning and Artificial Intelligence; AI-Generated Content
Customer acknowledges and agrees that: (a) the Services utilize artificial intelligence, machine learning, and natural language processing technologies to provide conversational commerce functionality; (b) Fyncall may, without providing any compensation to Customer or to any third party, use information gathered, collected, and/or generated in the course of providing the Services, including Customer Data (excluding End Customer personal data that would identify specific individuals), Feedback, Aggregate Data, Usage Data, and AI-Generated Content (as defined below), solely to build, train, and improve Fyncall’s internal machine learning and other artificial intelligence models to the extent permitted by law and otherwise consistent with Fyncall’s obligations set forth in this Agreement and the DPA; (c) Fyncall will not use identifiable End Customer personal data to train any third-party AI provider’s models; (d) any third-party AI provider utilized by Fyncall in connection with the Services will operate under a zero-data-retention policy with respect to Customer Data and will not use Customer Data to improve or train their models; and (e) Fyncall may use anonymized, aggregated conversation data and patterns to improve AI response quality across all customers.
Subject to Customer’s compliance with this Agreement, Customer may use the content, text, responses, and other output generated by the AI functionality of the Services based on Customer Data and interactions (“AI-Generated Content”) for any lawful purpose in connection with Customer’s e-commerce business operations, on a royalty-free basis, provided that Customer acknowledges and agrees that: (i) Customer’s use of the Services and the AI-Generated Content does not transfer to Customer ownership of any intellectual property rights in or to the Services, the underlying AI models, or the AI functionality; (ii) we may, by notice to Customer at any time, limit Customer’s use of the AI-Generated Content or require Customer to cease using specific AI-Generated Content (and delete any copies of such AI-Generated Content) if we form the view, in our sole and absolute discretion, that Customer’s use of the AI-Generated Content may infringe the rights of any third party or violate applicable law; (iii) Customer shall not represent that AI-Generated Content was human-generated; (iv) Customer shall not use AI-Generated Content to train Customer’s own machine learning models or any third-party models; and (v) Customer is solely responsible for reviewing, editing, and approving all AI-Generated Content before it is sent to End Customers, and Customer maintains ultimate control over what messages are sent through the Services.
CUSTOMER ACKNOWLEDGES THAT, DUE TO THE NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE, THE AI-GENERATED CONTENT MAY NOT BE UNIQUE ACROSS USERS OF THE SERVICES AND THE SERVICES MAY GENERATE THE SAME OR SIMILAR CONTENT FOR MULTIPLE USERS. CUSTOMER FURTHER ACKNOWLEDGES MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE INVOLVES PROBABILISTIC PROCESSING, AND THE USE OF OUR SERVICES LEVERAGING THESE TECHNOLOGIES MAY IN SOME SITUATIONS RESULT IN INCORRECT, INACCURATE, INAPPROPRIATE, OR NONSENSICAL AI-GENERATED CONTENT. CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING, EDITING, AND ASSESSING THE ACCURACY, APPROPRIATENESS, INTEGRITY, AND QUALITY OF ALL AI-GENERATED CONTENT BEFORE IT IS USED IN COMMUNICATIONS WITH END CUSTOMERS. CUSTOMER AGREES THAT WE SHALL NOT BE LIABLE FOR ANY DAMAGES CUSTOMER, ANY END CUSTOMER, OR ANY THIRD PARTY ALLEGES TO INCUR AS A RESULT OF OR RELATING TO ANY AI-GENERATED CONTENT OR OTHER CONTENT GENERATED BY OR ACCESSED ON OR THROUGH THE SERVICES.
4.3 Human Oversight and Control
Customer acknowledges and agrees that: (a) the Services are designed to augment, not replace, human judgment in e-commerce customer interactions; (b) Customer maintains ultimate responsibility for all communications sent to End Customers through the Services; (c) Customer will implement appropriate human review and oversight procedures for AI-Generated Content, particularly for sensitive matters such as refunds, cancellations, returns, and complaints; and (d) Fyncall provides tools within the Services to enable human agents to review, modify, and take over conversations from AI functionality at any time.
5. OWNERSHIP
5.1 Fyncall Technology
The Services consist of and/or are supported by (a) Fyncall’s proprietary technology (including software, hardware, products, processes, algorithms, AI models, machine learning models, natural language processing models, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information), (b) Fyncall’s business proprietary information (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement, and assembly of information), and content (other than Customer Data)) made available or used in providing the Services, (c) Usage Data and Aggregate Data, (d) modifications, improvements, and derivatives of the foregoing, and (e) all intellectual property and industrial rights in and to the foregoing (collectively, the “Fyncall Technology”). As between the parties, all rights (including any and all intellectual property rights), title, and interest in and to the Fyncall Technology are and will remain owned by Fyncall or its licensors, and this Agreement in no way conveys any right, title, or interest in or to the Services or the Fyncall Technology other than a limited right to access and use the Services in accordance with this Agreement.
5.2 Customer Data
Fyncall acknowledges and agrees that, as between Customer and Fyncall, all rights, title, and interest in and to the Customer Data (excluding Usage Data and Aggregate Data derived therefrom) are and will remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title, or interest in or to the Customer Data other than as set forth in this Agreement or in any Supplemental Terms. As between the parties, Customer and its licensors retain all rights (including any and all intellectual property rights), title, and interest in and to the Customer Data, except as set forth in this Agreement or in any Supplemental Terms. Subject to the terms of this Agreement and the DPA, Customer hereby grants to Fyncall a worldwide, irrevocable (except upon termination as provided in Section 8.2), transferable, sub-licensable (through multiple layers), assignable, non-exclusive, fully paid-up, royalty-free—and, with respect to clause (b) hereof only, perpetual—right to use, reproduce, copy, store, manipulate, modify, distribute, publish, list information regarding, make derivative works of, and publicly perform and display the Customer Data (a) during the Term in connection with providing the Services, including the Applications, and performing all related obligations owed to Customer under this Agreement, or as may be required by law; and (b) during the Term and thereafter, (i) to maintain, provide, improve, train, and enhance our products and services, including the Services and AI functionality, and for our other business purposes, such as data analysis, customer research, developing new products or features, and identifying usage trends, in each case subject to the requirements of Section 4.2 and the DPA, and (ii) to perform such other actions as described herein (including, without limitation, pursuant to Section 4.2) or as otherwise authorized by Customer in connection with Customer’s use of the Services.
5.3 Marks
No right or license is granted hereunder to Customer under any trademarks, service marks, trade names, or logos of Fyncall. Customer will not remove any Fyncall trademark, service mark, or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Services, Documentation, or Applications.
6. FEES; PAYMENTS; TAXES
6.1 Subscription Fees
In consideration of the Services, Customer will pay Fyncall the fees set forth in the applicable Subscription Plan or Order Form (“Subscription Fees”). Subscription Fees consist of: (a) a monthly base fee as specified in the Subscription Plan; and (b) usage-based overage charges calculated at $0.15 USD per AI Conversation for any AI Conversations exceeding the monthly allowance included in the base Subscription Plan. Unless otherwise stated in the applicable Order Form, base Subscription Fees are due at the start of each monthly billing period, are non-cancelable once the billing period has commenced, and are non-refundable. Overage charges are calculated at the end of each monthly billing period based on actual usage during that period and are billed in arrears. Customer’s use of the Services is subject to the limitations in the applicable Subscription Plan.
6.2 Payment Method
All fees due hereunder will be paid by credit card, debit card, or, if agreed to in writing by Fyncall, through other payment methods such as wire transfer or automated clearing house (“ACH”) transfers (each such payment method and related information provided by Customer, a “Payment Method”). By providing a Payment Method, Customer authorizes each of Fyncall and the third-party payment processor(s), such as Stripe, Inc., that we engage to process payments in connection with the Services (“Payment Processor”) to charge, or collect via, that Payment Method the applicable fees (including base Subscription Fees and overage charges) and Taxes (as defined below), including, if applicable, on a recurring monthly basis until Customer cancels the Subscription (including the applicable notice period specified in Section 7.5). Base Subscription Fees will be charged to, or collected via, Customer’s Payment Method at the beginning of each monthly billing period. Overage charges will be charged to, or collected via, Customer’s Payment Method at the end of each monthly billing period based on Excess Conversations incurred during that period. In some cases, Customer’s payment date may change (for example, if Customer’s Payment Method has not successfully settled, if the Subscription Plan changed, or if the Subscription began on a date not contained in a subsequent month). Fees are fully earned upon payment. We may authorize Customer’s Payment Method in anticipation of Services-related charges through various methods.
6.3 Payment Processor
Fyncall is not a payments processor, intermediary, or payment agent with respect to Subscription Fees. The Payment Processor is acting solely as a billing and processing agent for and on behalf of Fyncall. Fyncall will not be construed to be providing payment or other financial services, and the Payment Processor will not be construed as providing the Services. Fyncall or Payment Processor will attempt to verify Customer’s Payment Method(s), and may do so by processing an authorization hold, which is standard practice. To the extent Payment Processor processes payments made by Customer, Customer will be subject to terms and conditions governing the use of Payment Processor’s service, including, without limitation, Stripe, Inc.’s Services Agreement applicable to Customer (available at https://stripe.com/legal/ssa). Please review such terms and conditions as well as Payment Processor’s privacy notice (each of which is available on Payment Processor’s website). Customer acknowledges and understands that Payment Processor may collect and retain a portion of the fees (including Subscription Fees) Customer pays to Fyncall whenever Customer pays such fees. We do not view or store Customer’s full credit card or other Payment Method information. If any of Customer’s account, order, or Payment Method information changes, Customer will promptly update such information, so that we or Payment Processor may complete Customer’s transaction(s) and/or contact Customer, as needed.
Note regarding Commerce Channel Payments: Customer acknowledges that the Services may facilitate commerce transactions between Customer and End Customers through Commerce Channels. For clarity, Fyncall is not a payment processor for such commerce transactions. Any payments from End Customers to Customer for products or services are processed through Customer’s own payment processing systems (such as Shopify Payments, Stripe, or other payment gateways integrated with Customer’s E-commerce Platform), and Fyncall has no involvement in, responsibility for, or liability with respect to such End Customer payment transactions. The Subscription Fees under this Agreement relate solely to Customer’s subscription to and use of the Services, not to any commerce transactions between Customer and End Customers.
6.4 Late Payments and Disputed Fees
Customer will pay interest on all late payments for amounts not subject to a timely good faith dispute at the lesser of (a) 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer will reimburse Fyncall for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in collecting any unpaid undisputed amounts owed by Customer hereunder. If Customer reasonably and in good faith disputes any amount invoiced, it will promptly inform Fyncall of such dispute and may withhold payment for the amount subject to such dispute for a period of 30 days. If the parties are unable to resolve the dispute within such 30 days, each party will have the right to seek any remedies it may have under this Agreement, at law, or in equity.
6.5 Payment Representations and Warranties
Customer represents and warrants that: (a) the account and order information and the Payment Method Customer supplies to us and/or to Payment Processor, as applicable, is true, accurate, correct, and complete; (b) Customer is duly authorized to use the Payment Method(s); (c) Customer will pay any and all charges incurred by users of Customer’s Payment Method(s) in connection with the Services, including any applicable base Subscription Fees, overage charges, and Taxes; (d) charges incurred by Customer will be honored by the Payment Method’s company; (e) Customer will not allow or enable anyone else to use Customer’s Subscription (including, without limitation, by sharing Customer’s password(s) or any other authentication credentials with any third party outside Customer’s organization, or by attempting to transfer Customer’s Subscription to anyone else); and (f) Customer will report to us any unauthorized or prohibited access to or use of Customer’s Subscription and/or password(s) or other authentication credentials.
6.6 Disclaimer
We disclaim any and all liability with respect to, and Customer understands and acknowledges that we are not responsible for: (a) any security or privacy breaches related to Customer’s credit card or other Payment Method; (b) any fees that may be charged to Customer by Customer’s bank or Payment Method provider in connection with the collection of fees in connection with the Services (including Subscription Fees); (c) any unauthorized use of Customer’s Payment Method by a third party; and (d) any commerce transactions between Customer and End Customers, including payment processing, order fulfillment, refunds, chargebacks, or disputes related to such transactions.
6.7 Taxes
All amounts due hereunder are exclusive of all sales, use, goods and services tax (GST), value added tax (VAT), excise, service, and/or other taxes, duties, and charges of any kind (whether foreign, federal, state, local, or other) associated with this Agreement, the Services, or Customer’s access to the Services (collectively, “Taxes”). Customer agrees to pay any and all applicable direct and indirect Taxes associated with its transactions hereunder that Fyncall is legally required to collect and that Fyncall itemizes on Fyncall’s invoice(s). If Customer has an obligation to withhold any amounts under applicable law, Customer will gross up the payments so that Fyncall receives the amount actually quoted and invoiced. If Fyncall has the legal obligation to pay or collect Taxes for which Customer is responsible, Customer will reimburse Fyncall for such amounts. Customer must timely provide Fyncall with any valid tax exemption certificates authorized by the appropriate taxing authority. Customer is responsible for determining and remitting any Taxes applicable to commerce transactions between Customer and End Customers.
7. SUBSCRIPTION PAYMENTS
7.1 Automatic Renewals
SUBSCRIPTIONS ARE AVAILABLE ON AN AUTOMATICALLY RENEWING MONTHLY SUBSCRIPTION BASIS AND ENTAIL PAYMENT OF RECURRING SUBSCRIPTION FEES. CUSTOMER’S SUBSCRIPTION WILL COMMENCE UPON CUSTOMER’S SELECTION OF AN APPLICABLE SUBSCRIPTION PLAN AND WILL CONTINUE ON A MONTH-TO-MONTH BASIS (THE “INITIAL TERM”), UNLESS CANCELLED EARLIER IN ACCORDANCE WITH THIS AGREEMENT. IF THE SUBSCRIPTION IS NOT CANCELLED AT THE EXPIRATION OF ANY MONTHLY TERM, THEN THE SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE MONTHLY TERMS (EACH, A “RENEWAL TERM”) UNLESS AND UNTIL CUSTOMER CANCELS THE APPLICABLE SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 7.5 (INCLUDING THE APPLICABLE NOTICE PERIOD SPECIFIED IN SECTION 7.5). THE INITIAL TERM OR THE APPLICABLE RENEWAL TERM (AS APPLICABLE) IS REFERRED TO HEREIN AS A “SUBSCRIPTION TERM”; THE TIME PERIOD SPANNING THE INITIAL TERM TOGETHER WITH ANY AND ALL RENEWAL TERMS (I.E., ALL THE SUBSCRIPTION TERMS) IS REFERRED TO HEREIN AS THE “TERM.”
7.2 Automatic Billing Policies
When Customer enrolls in a Subscription, Customer expressly acknowledges and agrees that: (a) each of Fyncall and Payment Processor is authorized to charge Customer, at the beginning of each monthly Subscription Term, the base Subscription Fees for such Subscription, and at the end of each monthly Subscription Term, any applicable overage charges for Excess Conversations, any applicable Taxes, and any other charges Customer may incur in connection with such Subscription, subject to adjustment in accordance with this Agreement; and (b) Customer’s Subscription is continuous until the earlier of: (i) Customer’s cancellation of such Subscription (including the applicable notice period specified in Section 7.5) and (ii) the termination of Customer’s access to such Subscription or to the Services in accordance with this Agreement. Customer understands and acknowledges that the amounts billed may vary month-to-month due to: (i) changes in the number of AI Conversations and resulting overage charges; (ii) changes to the base Subscription Fees in accordance with the Subscription Plan; (iii) upgrades or downgrades to the Subscription Plan; and/or (iv) changes in applicable Taxes, and Customer authorizes each of Fyncall and Payment Processor to charge Customer’s Payment Method the changed amounts.
7.3 Fee Increases
Fyncall reserves the right to increase base Subscription Fees or overage rates on at least 30 days’ prior notice. If Customer objects to the fee increase, Customer may cancel the applicable Subscription in accordance with the cancellation procedures identified in Section 7.5 before the effective date of the fee increase. If Customer does not exercise its right of cancellation during such period, Customer will be deemed to have accepted the increased fees.
7.4 Subscription Plan Upgrades and Downgrades
If Customer subscribes to an Upgraded Plan during a Subscription Term, any incremental increases to the base Subscription Fees associated with such Upgraded Plan will be charged on a pro-rata basis for the remainder of the then-current monthly Subscription Term. If Customer desires to downgrade its Subscription Plan for a subsequent Subscription Term, Customer must provide Fyncall with written notice no less than five (5) days prior to the end of the then-current monthly Subscription Term by contacting us at billing@fyncall.com. Customer must take such actions as required by Fyncall to accommodate the downgrade of the Subscription Plan prior to the beginning of the upcoming Subscription Term. To the extent permitted by applicable law, Fyncall is not responsible for any loss of data, content, features, or capacity of the Services after any such downgrade.
7.5 Cancellation Procedures
To cancel any Subscription, Customer must provide us with written notice no less than five (5) days prior to the end of the then-current monthly Subscription Term. Notice must be provided either by using the appropriate functionalities of the Services or by contacting us at billing@fyncall.com. Customer’s Subscription will continue through the end of the then-current monthly Subscription Term, and Customer will be charged for any Excess Conversations incurred during that final Subscription Term. CUSTOMER UNDERSTANDS THAT, UNLESS AND UNTIL CUSTOMER NOTIFIES US OF CUSTOMER’S INTENT TO CANCEL, CUSTOMER’S SUBSCRIPTION AND THE CORRESPONDING SUBSCRIPTION FEES WILL AUTOMATICALLY RENEW ON A MONTHLY BASIS, AND CUSTOMER AUTHORIZES EACH OF FYNCALL AND PAYMENT PROCESSOR (WITHOUT NOTICE TO CUSTOMER, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE CUSTOMER THE APPLICABLE BASE SUBSCRIPTION FEES, OVERAGE CHARGES, AND ANY TAXES, USING ANY OF CUSTOMER’S PAYMENT METHODS, FOR EACH SUBSCRIPTION TERM.
7.6 Suspension and Termination; Refunds
Fyncall may de-activate Customer’s account at any time, and we may, subject to the terms hereof, with or without prior notice, cancel, suspend, or terminate Customer’s Subscription, permanently terminate or temporarily suspend Customer’s access to Customer’s account, or stop providing the Services (or any portion thereof) without liability, at any time, in our sole discretion, for any or no reason, including if, in our sole determination: (a) Customer violates any provision of this Agreement; (b) Customer’s account with any E-commerce Platform or Commerce Channel is suspended, terminated, or restricted; (c) Customer violates the terms of service or policies of any E-commerce Platform or Commerce Channel; (d) we are required to do so by law or by a Commerce Channel or E-commerce Platform; or (e) Customer’s payment fails or Customer’s account becomes past due. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT, UNLESS REQUIRED BY APPLICABLE LAW, CUSTOMER WILL NOT BE ENTITLED TO RECEIVE ANY REFUND OR CREDIT FOR ANY SUCH DE-ACTIVATION, CANCELLATION, SUSPENSION, OR TERMINATION, NOR FOR ANY UNUSED TIME ON CUSTOMER’S SUBSCRIPTION, ANY PRE-PAYMENTS MADE IN CONNECTION WITH CUSTOMER’S SUBSCRIPTION, ANY USAGE OR SUBSCRIPTION FEES FOR ANY PORTION OF THE SERVICES, OVERAGE CHARGES ALREADY INCURRED, ANY CONTENT OR DATA ASSOCIATED WITH CUSTOMER’S ACCOUNT, OR ANYTHING ELSE, AND THAT ANY SUCH REFUNDS OR CREDITS MAY BE GRANTED AT OUR SOLE OPTION AND IN OUR SOLE DISCRETION. If Customer believes Customer has been improperly charged and would like to request a refund, please contact us at billing@fyncall.com.
7.7 Free Trials
We may, at our sole option and in our sole discretion, offer free trials to a particular portion of the Services, subject to the terms of the offer. If Customer is signed up to such a free trial, we or Payment Processor will automatically, with or without notice to Customer, bill Customer’s Payment Method: (a) on the day that follows the last day of such free trial (which day will be the first day of the first Subscription Term), unless Customer cancels the free trial by 11:59 PM Pacific Time on the last day of the free trial period, and (b) at the beginning of each subsequent monthly Subscription Term for base Subscription Fees and at the end of each monthly Subscription Term for any applicable overage charges, subject to the terms of this Agreement. Free trials may include limitations on AI Conversations, features, or functionality.
8. TEMPORARY SUSPENSION; TERMINATION
8.1 Temporary Suspension
Without limiting Fyncall’s rights under Section 7.6, Fyncall may, in its sole discretion and upon notice to Customer, elect to suspend Customer’s access to Customer’s account, the Subscription, and/or the Services due to: (a) Customer’s breach of this Agreement until the breach has been remedied; (b) Customer’s violation of Commerce Channel or E-commerce Platform terms of service or policies; (c) suspension or restriction of Customer’s account by a Commerce Channel or E-commerce Platform; (d) suspected fraudulent activity, security concerns, or malicious use of the Services; or (e) non-payment or failed payment. Fyncall will provide written notice to Customer if the suspended Subscription is reinstated. Without limiting Fyncall’s other rights under this Agreement, Fyncall may restrict functionalities of the Services or suspend the Services (or any part thereof) or the Authorized Users’ permission to access and use the Services, and may remove Customer Data and/or other content from the Services if (i) we reasonably believe that Customer or an Authorized User has violated this Agreement; (ii) we suspect or detect any malicious activity or software in the Services; (iii) we are required to do so by a Commerce Channel, E-commerce Platform, or applicable law; or (iv) to mitigate the risk of a security incident or to protect the rights or content of others. Unless we are legally prohibited from doing so, we will use commercially reasonable efforts to notify Customer of such actions via email. We may refer any suspected fraudulent, abusive, or illegal activity by Customer or an Authorized User to law enforcement authorities or to the relevant Commerce Channel or E-commerce Platform.
8.2 Effects of Termination; Survival
Upon the termination or expiration of the Term: (a) all rights granted to Customer hereunder will terminate, and Fyncall will no longer provide access to the Services to Customer or to any Authorized Users; (b) Customer will cease accessing and using the Services; and (c) Customer will pay all outstanding fees, including any overage charges for Excess Conversations incurred prior to the effective date of termination. If requested by Customer within 30 days after the effective date of termination or expiration of the Term, Fyncall will make the Customer Data available to Customer for download for a period of 30 days, subject to the data export functionality available in the Services as described in the Documentation. After such 30-day period, Fyncall may permanently delete Customer Data in accordance with its data retention policies. In the event of a suspension, the Customer Data will be available to Customer until Fyncall notifies Customer of a termination. Customer acknowledges that Fyncall cannot retrieve messages or data from Commerce Channels after termination, as such data is controlled by the Commerce Channel platforms. Any obligations that have accrued prior to termination or expiration will survive termination or expiration of this Agreement. In addition, the following Sections, as well as any other provisions herein that by their nature should survive, will survive termination or expiration of the Term: Sections 1, 3, 4, 5, 6, 8.2, and 9 through 14 (inclusive).
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
9.1 General Representations and Warranties
Each party hereby represents and warrants to the other party that: (a) if such party is a company, organization, or other entity, such entity is duly organized, validly existing, and in good standing in its jurisdiction of organization; (b) such party’s execution, delivery, and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such party is an individual, such party has the legal capacity to enter into this Agreement; (c) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such party, enforceable against such party in accordance with their terms, subject to bankruptcy, insolvency, and other laws affecting creditors’ rights generally; (d) its execution, delivery, and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any agreement or other obligation to which such party is subject; and (e) it has all rights and permissions necessary to fully perform its obligations hereunder.
9.2 Customer Representations and Warranties
Customer further represents and warrants that: (a) Customer operates a legitimate e-commerce business; (b) Customer has and will maintain all necessary rights, permissions, and authorizations to use the E-commerce Platform(s) and Commerce Channel(s) in connection with the Services; (c) Customer’s use of the Services and all Customer Data complies and will comply with all applicable laws, regulations, and the terms of service of all E-commerce Platforms and Commerce Channels; (d) Customer has obtained and will obtain all necessary consents and permissions from End Customers to communicate with them through the Commerce Channels and to process their personal data as required to use the Services; and (e) Customer will not use the Services to send unsolicited commercial communications or spam or otherwise violate anti-spam or marketing laws.
9.3 Fyncall Warranty
Fyncall represents and warrants that: (a) it will provide the Services in a competent and workmanlike manner, consistent with industry standards; and (b) it owns or otherwise has sufficient rights (including, without limitation, all intellectual property rights) to grant the rights granted to Customer under this Agreement. FYNCALL DOES NOT WARRANT THAT IT WILL (OR THAT IT WILL BE ABLE TO) CORRECT ALL REPORTED DEFECTS OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. FYNCALL MAKES NO WARRANTY REGARDING THE ACCURACY, APPROPRIATENESS, OR QUALITY OF AI-GENERATED CONTENT OR THAT AI-GENERATED CONTENT WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. FYNCALL MAKES NO WARRANTY REGARDING FEATURES OR SERVICES PROVIDED BY ANY THIRD PARTIES, INCLUDING E-COMMERCE PLATFORMS, COMMERCE CHANNELS, OR PAYMENT PROCESSORS.
Customer’s sole remedy for Fyncall’s breach of the warranty in this Section 9.3 will be that Fyncall will use commercially reasonable efforts to remedy the applicable error, or, if Fyncall is unable to do so in a timely manner, provide a pro-rata refund to Customer of the base Subscription Fees paid for the monthly Subscription Term during which the breach of warranty occurred, up to a maximum of one month’s base Subscription Fees (excluding overage charges).
9.4 Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING THE APPLICATIONS AND AI FUNCTIONALITY, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, FYNCALL MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICES (WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) OF NONINFRINGEMENT, (C) THAT THE SERVICES WILL MEET CUSTOMER’S (OR ANY END CUSTOMER’S OR OTHER THIRD PARTY’S) REQUIREMENTS, WILL ALWAYS BE AVAILABLE AND ACCESSIBLE, WILL BE UNINTERRUPTED, TIMELY, OR SECURE, OR WILL OPERATE WITHOUT ERROR, (D) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, INCLUDING ANY INCREMENTAL REVENUE, CONVERSION RATES, OR OTHER BUSINESS OUTCOMES, (E) AS TO THE ACCURACY, COMPLETENESS, APPROPRIATENESS, CURRENCY, OR RELIABILITY OF ANY INFORMATION, AI-GENERATED CONTENT, OR OTHER CONTENT OBTAINED FROM THE SERVICES, (F) THAT THE SERVICES WILL BE COMPATIBLE WITH ALL E-COMMERCE PLATFORMS OR COMMERCE CHANNELS, OR (G) THAT E-COMMERCE PLATFORMS OR COMMERCE CHANNELS WILL CONTINUE TO BE AVAILABLE OR WILL NOT CHANGE THEIR APIs, TERMS, OR POLICIES IN WAYS THAT AFFECT THE SERVICES.
CUSTOMER ACKNOWLEDGES THAT AI-GENERATED CONTENT IS CREATED BY MACHINE LEARNING MODELS THAT ARE PROBABILISTIC IN NATURE AND MAY PRODUCE ERRORS, INACCURACIES, OR INAPPROPRIATE CONTENT. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL COMMUNICATIONS WITH END CUSTOMERS AND FOR REVIEWING AND APPROVING AI-GENERATED CONTENT BEFORE IT IS SENT TO END CUSTOMERS.
9.5 Beta Services
Occasionally, Fyncall may look for beta testers to help it test new versions, features, Commerce Channel integrations, E-commerce Platform integrations, or AI functionality of the Services (each, a “Beta Service”). Beta Services will be identified as “beta,” “preview,” “experimental,” or with words or phrases with similar meanings. Beta Services are made available on an “as is” and “as available” basis and, notwithstanding anything to the contrary herein, to the extent permitted under applicable law, without any warranties, indemnification obligations, service level commitments, or other contractual commitments that Fyncall makes for generally available Services.
9.6 Disclaimer For Third-Party Services
CUSTOMER ACKNOWLEDGES THAT THE SERVICES: (A) ARE HOSTED BY THIRD-PARTY HOSTING PROVIDERS AND USE THIRD-PARTY SERVER HARDWARE, STORAGE, AND INFRASTRUCTURE; (B) INTEGRATE WITH AND RELY ON THIRD-PARTY E-COMMERCE PLATFORMS (SUCH AS SHOPIFY) AND COMMERCE CHANNELS (SUCH AS WHATSAPP BUSINESS API AND INSTAGRAM); (C) USE THIRD-PARTY AI AND MACHINE LEARNING SERVICES; (D) USE THIRD PARTIES TO PROCESS SUBSCRIPTION PAYMENTS; AND (E) MAY USE OTHER THIRD-PARTY SERVICES THAT AUGMENT THE SERVICES OR ON WHICH THE SERVICES OR CERTAIN FUNCTIONALITIES OF THE SERVICES RELY (ALL SUCH THIRD PARTIES, “THIRD-PARTY SERVICE PROVIDERS”). FYNCALL MAY REPLACE ANY OR ALL OF THE THIRD-PARTY SERVICE PROVIDERS AT ANY TIME. THE USE OF THE SERVICES PROVIDED BY THIRD-PARTY SERVICE PROVIDERS IS SUBJECT TO ANY RESTRICTIONS, TERMS, AND CONDITIONS IMPOSED BY SUCH THIRD-PARTY SERVICE PROVIDERS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, FYNCALL WILL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS, ERRORS, SUSPENSIONS, TERMINATIONS, API CHANGES, POLICY CHANGES, OR DOWNTIME WITH THE SERVICES TO THE EXTENT CAUSED BY A THIRD-PARTY SERVICE PROVIDER, INCLUDING ANY E-COMMERCE PLATFORM OR COMMERCE CHANNEL. CUSTOMER EXPRESSLY RELIEVES US FROM ANY AND ALL LIABILITY ARISING FROM CUSTOMER’S OR ANY AUTHORIZED USER’S ACCESS TO AND/OR USE OF ANY ASPECT OF THE SERVICES PROVIDED BY A THIRD-PARTY SERVICE PROVIDER. CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICES REFLECT THE FACT THAT FYNCALL IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE THIRD-PARTY SERVICE PROVIDERS.
CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT: (I) E-COMMERCE PLATFORMS AND COMMERCE CHANNELS MAY CHANGE THEIR APIS, TERMS OF SERVICE, POLICIES, OR FUNCTIONALITY AT ANY TIME, WHICH MAY AFFECT THE OPERATION OF THE SERVICES; (II) E-COMMERCE PLATFORMS AND COMMERCE CHANNELS MAY SUSPEND, RESTRICT, OR TERMINATE CUSTOMER’S ACCESS TO THEIR PLATFORMS FOR VIOLATIONS OF THEIR TERMS OR POLICIES, WHICH WILL AFFECT CUSTOMER’S ABILITY TO USE THE SERVICES; (III) COMMERCE CHANNELS IMPOSE MESSAGE LIMITS, RATE LIMITS, AND OTHER RESTRICTIONS THAT MAY LIMIT CUSTOMER’S USE OF THE SERVICES; AND (IV) FYNCALL HAS NO CONTROL OVER SUCH THIRD-PARTY ACTIONS AND IS NOT LIABLE FOR ANY RESULTING DISRUPTION TO THE SERVICES.
10. LIMITATIONS OF LIABILITY
10.1 Damages Cap
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FYNCALL’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF BASE SUBSCRIPTION FEES (EXCLUDING OVERAGE CHARGES) PAID BY CUSTOMER TO FYNCALL UNDER THIS AGREEMENT OVER THE 12 MONTHS PRIOR TO WHEN THE LAST LIABILITY AROSE, OR ONE THOUSAND U.S. DOLLARS (USD $1,000), WHICHEVER IS GREATER.
10.2 Disclaimer of Indirect Damages
IN NO EVENT WILL FYNCALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, LOST PROFITS, LOST REVENUE, LOST SALES, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, DAMAGE TO CUSTOMER’S REPUTATION OR CUSTOMER RELATIONSHIPS, OR COSTS OF REPLACEMENT SERVICES) ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF FYNCALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM: (A) ERRORS, INACCURACIES, OR INAPPROPRIATE CONTENT IN AI-GENERATED CONTENT; (B) COMMUNICATIONS SENT TO END CUSTOMERS THROUGH THE SERVICES; (C) ACTIONS OR INACTIONS OF THIRD-PARTY SERVICE PROVIDERS, INCLUDING E-COMMERCE PLATFORMS AND COMMERCE CHANNELS; (D) SUSPENSION, TERMINATION, OR RESTRICTION OF CUSTOMER’S ACCOUNTS BY E-COMMERCE PLATFORMS OR COMMERCE CHANNELS; OR (E) FAILURE TO ACHIEVE ANY PARTICULAR BUSINESS RESULTS FROM USE OF THE SERVICES.
10.3 Exceptions
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE LIMITATIONS IN SECTIONS 10.1 AND 10.2 ABOVE WILL NOT APPLY TO LIABILITY ARISING FROM (A) FYNCALL’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; (B) FYNCALL’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.1; OR (C) AN UNAUTHORIZED USE OR DISCLOSURE OF CUSTOMER DATA IN BREACH OF THIS AGREEMENT, SUPPLEMENTAL TERMS, OR THE DATA PROCESSING AGREEMENT, IN WHICH CASE OF CLAUSE (C) FYNCALL’S LIABILITY TO CUSTOMER WILL BE TWICE THE AMOUNT SET OUT IN SECTION 10.1 OF THIS AGREEMENT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1.
10.4 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGES SET FORTH IN THIS SECTION 10 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT FYNCALL HAS SET ITS FEES IN ABSOLUTE RELIANCE ON THESE LIMITS AND THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY WILL APPLY NOTWITHSTANDING ANY REMEDY FAILING ITS ESSENTIAL PURPOSE.
10.5 Jurisdictional Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES (FOR EXAMPLE, INCIDENTAL OR CONSEQUENTIAL DAMAGES). IN A JURISDICTION WHERE SOME OF THE ABOVE LIMITATIONS DO NOT APPLY, FYNCALL’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAWS OF SUCH JURISDICTION.
11. INDEMNIFICATION
11.1 Fyncall Indemnification
Fyncall will defend and indemnify Customer from and against any claims, actions, proceedings, demands, lawsuits, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) (“Claims”) brought by, or due to, a third party to the extent it is proven in a final, non-appealable adjudication that any part of the Fyncall Technology (excluding Third-Party Service Provider technology, AI models provided by third parties, and E-commerce Platform or Commerce Channel services) infringes, misappropriates, or otherwise violates such third party’s intellectual property or proprietary right when used as authorized in this Agreement (collectively, “Infringement”).
11.2 Customer Indemnification
Customer will indemnify, defend, and hold Fyncall and Fyncall’s Affiliates and subcontractors, and each of its and their officers, directors, employees, consultants, and subcontractors (singularly or collectively, “Fyncall Parties”) harmless against any Claims brought against, or suffered or incurred by, the Fyncall Parties arising out of or in connection with any: (a) use of the Services (and not arising solely from the Services themselves), including use of AI-Generated Content, by Customer or Authorized Users in breach of this Agreement; (b) communications sent by Customer or Authorized Users to End Customers through the Services, including any claims that such communications violate applicable laws, constitute spam, harassment, defamation, fraud, deceptive trade practices, or violate the rights of End Customers; (c) commerce transactions between Customer and End Customers, including any claims related to products sold, services provided, payment processing, order fulfillment, refunds, returns, chargebacks, or product liability; (d) Customer Data, including any claims that Customer Data infringes third-party rights or violates applicable laws; (e) negligence, fraud, dishonesty, or reckless or willful misconduct of Customer, any Authorized User, and/or any of their representatives; (f) failure or alleged failure by Customer to comply with any obligation, warranty, or representation under this Agreement; (g) breach of the terms of service or policies of any E-commerce Platform or Commerce Channel by Customer or any Authorized User; (h) breach of applicable law by Customer or any Authorized User, including laws relating to e-commerce, consumer protection, data privacy, electronic communications, anti-spam, or marketing; (i) failure to obtain necessary consents or permissions from End Customers to communicate with them or process their personal data; and (j) a third party’s allegation that Customer’s performance under this Agreement or any materials provided, directly or indirectly, by Customer (including, without limitation, Customer Data) to Fyncall infringes, misappropriates, or violates the rights of a third party, including any rights of privacy, confidentiality, or intellectual property of that third party.
11.3 Indemnification Process
The party to be indemnified (the “Indemnitee”) will: (a) provide the indemnifying party (the “Indemnitor”) notice of the Claim as soon as practical; provided, however, that the failure to give such notice shall relieve the Indemnitor of its obligations under Section 11.1 or Section 11.2 (as applicable) solely to the extent the Indemnitor is prejudiced thereby; (b) give the Indemnitor the option to conduct the defense of the Claim, including negotiations for settlement or compromise before the institution of legal proceedings; provided, however, that no Claims may be settled, compromised, or otherwise disposed of by the Indemnitor without the express prior written consent of the Indemnitee; and (c) provide the Indemnitor with reasonable assistance in conducting the defense of the Claim.
11.4 Exclusions
Fyncall’s obligations in Section 11.1 above will not apply to any Claim to the extent arising from or relating to: (a) use of the Services other than strictly in accordance with the Documentation, Fyncall’s instructions, and this Agreement; (b) any modification, alteration, or conversion of the Services not created or approved in writing by Fyncall; (c) any combination of the Services with any computer, hardware, software, or service not provided by Fyncall; (d) Fyncall’s compliance with specifications or other requirements of Customer; (e) any Customer Data used by Fyncall in accordance with this Agreement; (f) AI-Generated Content or communications sent to End Customers through the Services; (g) Third-Party Service Provider technology, including E-commerce Platform or Commerce Channel services or third-party AI models; or (h) any actions or inactions of E-commerce Platforms, Commerce Channels, or other Third-Party Service Providers.
11.5 Exclusive Remedy for Claims of Infringement
If the Fyncall Technology (excluding Third-Party Service Provider components) is or may be subject to a claim of Infringement, Fyncall may, at its cost and sole discretion: (a) obtain the right for Customer to continue using the Services as contemplated herein; (b) replace or modify the Services so that they become non-Infringing without substantially compromising their principal functions; or (c) to the extent the foregoing are not commercially reasonable, stop providing the infringing portion of the Services and return to Customer any pre-paid base Subscription Fees (excluding overage charges) for the infringing Services associated with the Subscription Term(s) during which the subscribed Services could not be used due to the Infringement (if any). Fyncall’s obligations in Section 11.1 and in this Section 11.5 will be Fyncall’s sole obligations, and Customer’s sole remedies, in the event of any claim of Infringement.
12. CONFIDENTIALITY
The Services may include non-public, proprietary, or confidential information of Customer, Fyncall, and/or of third parties (“Confidential Information”). Confidential Information includes any and all information that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology, AI models, algorithms, and marketing information. Each Party shall, and (if applicable) shall ensure that all Authorized Users will: (a) protect and safeguard the confidentiality of all Confidential Information using at least the same degree of care as it uses to protect its own highly sensitive confidential information, but in no event less than a reasonable degree of care; (b) not use any Confidential Information except as necessary to exercise its rights or fulfill its obligations under this Agreement; and (c) not disclose any Confidential Information to any person or entity, except to its service providers, financial or legal advisors, or Authorized Users (as the case may be) who (i) have a need to know the Confidential Information and (ii) are bound by written non-use and non-disclosure obligations at least as restrictive as those set forth in this Section. Notwithstanding the foregoing, a Party may disclose Confidential Information if required by law, regulation, or a valid court order, provided that (where legally permitted) the disclosing Party gives the other Party prompt written notice to allow it to seek a protective order or other appropriate remedy.
13. DATA PROTECTION AND PRIVACY
13.1 Data Processing Addendum
The parties acknowledge that Customer may process personal data of End Customers and other individuals through the Services. To the extent Fyncall processes personal data on behalf of Customer, the Data Processing Addendum (“DPA”) available at https://www.fyncall.com/dpa is incorporated into and forms part of this Agreement. Customer and Fyncall will comply with their respective obligations under the DPA.
13.2 Customer Responsibilities
Customer is solely responsible for: (a) obtaining all necessary consents and permissions from End Customers to communicate with them through the Commerce Channels and to collect, use, and process their personal data as required to use the Services; (b) providing appropriate privacy notices to End Customers; (c) complying with all applicable data protection and privacy laws, including but not limited to GDPR, PDPA, and other applicable laws; (d) determining the lawful basis for processing End Customer personal data; and (e) handling End Customer requests regarding their personal data (such as access, deletion, or portability requests).
13.3 Marketing Compliance
Customer acknowledges and agrees that: (a) Customer is solely responsible for complying with all applicable marketing and anti-spam laws and regulations in connection with communications sent through the Services; (b) Customer must obtain appropriate consent from End Customers before sending marketing communications; (c) Customer must provide End Customers with clear opt-out mechanisms; and (d) Customer must honor opt-out requests promptly.
14. MISCELLANEOUS
14.1 Compliance with Laws
Each party will comply with all laws, rules, regulations, and ordinances applicable to its activities hereunder. The Services and other Fyncall Technology may be subject to export controls and economic sanctions laws and regulations of applicable jurisdictions. Customer agrees to comply with all such laws and regulations as they relate to the access to and use of the Services and other Fyncall Technology. Each party represents that none of it, its parents, or its controlling shareholders is named on any government or other applicable restricted-party list. Customer will not, and will not permit any Authorized User to: (a) access or use the Services in an embargoed or sanctioned country or region; (b) access or use the Services if Customer or the Authorized User is named on any government or other applicable restricted-party list; or (c) access or use the Services for any purpose prohibited by applicable laws, including international import and export laws and regulations, anti-money laundering laws, or laws prohibiting the facilitation of illegal activities.
14.2 Assignment
Except as permitted hereunder, Customer may not assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of Fyncall. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, the parties acknowledge and agree that (a) Fyncall may assign this Agreement and its rights hereunder, in whole or in part, to any third party, including in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and (b) Fyncall may assign, transfer, pledge, and deliver the same to its lenders or other creditors, including the right to create, attach, and perfect a security interest in this Agreement and Fyncall’s rights to payment hereunder. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will be binding on each party’s successors and permitted assigns.
14.3 Entire Agreement
This Agreement, together with the DPA, any Supplemental Terms, and/or applicable Order Form(s), contains the complete understanding and agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. Except as expressly stated herein, there are no other agreements, representations, warranties, or commitments that may be relied upon by either party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the parties, except as may otherwise be expressly provided herein.
14.4 Amendment
We may amend this Agreement from time to time, in which case the amended Agreement will supersede prior versions. When we change this Agreement in a material manner, we will update the ‘Last Revised’ date at the top of this page and notify Customer not less than 30 days prior to the effective date of any such material amendment via email or through the Services. Continued access to and/or use of the Services following the effective date of any amendment to this Agreement may be relied upon by Fyncall as Customer’s consent to any such amendment. If Customer objects to any material amendment, Customer’s sole remedy is to terminate the Agreement in accordance with Section 7.5 before the effective date of the amendment.
14.5 Notice
Fyncall may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account or as updated by Customer in the account settings, and such notices will be effective upon confirmation of transmission to Customer. Customer may give notice to Fyncall by email to legal@fyncall.com or at such other address as Fyncall may specify from time to time.
14.6 Force Majeure
Fyncall will not be liable or responsible to Customer or to any third party, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance, or other cause beyond the reasonable control of Fyncall and which could not have been prevented by reasonable diligence on the part of Fyncall, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, comprehensive cybersecurity attacks, cyber terrorism, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemics, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, actions or inactions of Third-Party Service Providers (including E-commerce Platforms and Commerce Channels), telecommunication breakdown, or power outage (each, a “Force Majeure Event”), provided that Fyncall promptly provides written notice to Customer of such Force Majeure Event preventing or delaying performance and resumes its performance as soon as practicable.
14.7 Publicity
Customer hereby grants Fyncall and its Affiliates a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable, and perpetual license to use and display Customer’s name, trade name(s), and logo(s) on client lists published on Fyncall’s website and in marketing materials (whether physical or digital). Fyncall will stop exercising the foregoing license promptly upon receipt of Customer’s request sent to legal@fyncall.com. Fyncall may announce the relationship hereunder in a press release, provided that Fyncall obtains Customer’s prior approval of the wording of the release (such approval not to be unreasonably withheld).
14.8 Governing Law
This Agreement is and will be governed by and construed under the laws of Hong Kong Special Administrative Region, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
14.9 Disputes; Arbitration
(a) Arbitration Agreement
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and Fyncall or its employees, agents, successors, or assigns, will be settled exclusively through binding and confidential arbitration. The arbitration will be conducted in Hong Kong under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The arbitration will be conducted before one arbitrator. The language of the arbitration shall be English.
(b) Collective Claims Prohibited
ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR COLLECTIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS OR COLLECTIVE PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF.
(c) Costs and Relief
The arbitrator will honor claims of privilege and privacy recognized at law, the arbitration proceedings will be confidential, and neither Customer nor Fyncall may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. The arbitrator may award any individual relief or individual remedies that are permitted by applicable law, and the losing party will pay the prevailing party’s reasonable attorneys’ fees and expenses to the extent directed by the arbitrator. Notwithstanding the foregoing: (i) either Customer or Fyncall may bring an individual action in small claims court to the extent eligible, and (ii) either party may seek emergency equitable relief before the Hong Kong courts in order to maintain the status quo pending arbitration and/or as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, confidential information (including, in the case of Fyncall, Confidential Information), or intellectual property rights, and each party hereby agrees to submit to the jurisdiction of the Hong Kong courts for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
14.10 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise or employment relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
14.11 Waiver
No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.12 Severability
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction, and the remaining provisions of this Agreement will remain in effect.
14.13 Headings; Interpretation
Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly stated otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement will not be limiting, and “or” will not be exclusive.
14.14 Language
This Agreement is executed in the English language. If this Agreement is translated into any other language, the English language version shall prevail.