1. Applicability
1.1 These Terms and Conditions (“Terms”) govern the delivery of all “Kaizo” and Services from Kaizo Operations B.V., whose registered office is at Weesperstraat 61-105, Amsterdam, Netherlands 1018VN (“Kaizo”), to customer (“Customer”) and apply to all similar dealings between Kaizo and Customer.
1.2 The Terms, also included Data Processing Terms, shall be effective upon creating an account on the Website kaizostaging.wpengine.com and accepting the terms and conditions.
1.3 Effective date of Kaizo’s Terms: 09.08.2021
1.4 Deviations from and amendments to these Terms will only be binding insofar as Kaizo has explicitly confirmed this in writing, duly signed by an authorised representative of Kaizo.
1.5 Only the current version will be displayed publicly. If you need a copy of an earlier version, please contact us at terms@kaizo.com
2. Definitions
2.1 In these Terms, word and phrases have the meaning given to them in this article 2.
Access Data: information needed to access the Customers user account as made available by Kaizo;
Account: the Kaizo account of Customer;
Affiliate: an entity that directly or indirectly, through one or more intermediaries, is controlled by with the referenced entity, in each case where the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest or otherwise;
Agent: a customer service representative that uses the Account;
API: a software intermediary that allows two applications to talk to each other;
CS Department: customer service department of Customer;
Customer: a natural or legal person who has accepted the Terms;
Customer Data: any information uploaded to the Kaizo system from a third-party customer communication platform (for example Zendesk) or created in the Kaizo system or otherwise made available to Kaizo by the Customer;
Data breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to, personal data;
Data Protection Laws: any data protection laws applicable in the Netherlands from time to time, including the General Data Protection Regulation EU 2016/679 (“GDPR”);
Licensor: a person or organization from whom Kaizo obtains the right to use any intellectual property rights in connection with Kaizo system;
Mobile Application: software designed to run on a mobile device, such as a smartphone or tablet computer;
Parties: Kaizo and Customer;
Personal Data: any information relating to an identified or identifiable individual;
Service: the Kaizo performance management system accessible via the Website and Application and all platforms, software, services, documentation or data associated with it, used by the Customer to improve the overall performance of their CS department, as well as the individual performance of an Agent; and
Website: https://kaizostaging.wpengine.com/ and any of its sub-domains.
3. License
3.1 Kaizo grants Customer a limited, non-exclusive, non-transferable and revocable license to access and use the Service, and permit Agents to access and use the Service, in accordance with these Terms.
3.2 The Service enables the Customer to store, analyze, review and evaluate the day-to-day interactions between the Agent and the customers, by connecting via an API its third-party customer communication platform account to the Account.
3.3 The Service of Kaizo consists of:
(i) download and save Customers day-to-day interactions between the Agent and the customers;
(ii) store information about the profile and performance of the Agent;
(iii) provide updates and upgrades in order to enhance, improve and further develop the Services;
(iv) store data created within the Service by Customer.
3.4 Kaizo shall use its best efforts to ensure the undisturbed availability of the Service and provides support.
3.5 Although the Service is updated on a daily basis, Kaizo does not provide any guarantee for recovering any data in case of its loss. Customer is obliged to perform daily backups of all data related to their use of the Services to such extent as is necessary.
3.6 Customer shall use the Service only for its internal business purposes and shall not, and shall not authorize any third party to use the Service in violation of any applicable laws or rights of third parties including, without limitation, to (a) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code from the software that is being used to provide the Service; (b) infringe any copyright and other intellectual and industrial property rights of any third party; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) store prohibited material including any data that is obscene, threatening, libelous, or otherwise unlawful or tortuous; and/or (e) allow any unauthorized third party to access or use the Service.
4. Account
4.1 Customer is required to create an Account in order to be able to access the Service. The use of the Service is only possible if Customer provides the requested mandatory login data. Customer is obliged, inter alia, to specify a valid email address as user name. This email address shall simultaneously serve as the means of communication between Kaizo and Customer.
4.2 Customer assures that the login data used for the creation of the Account is accurate and complete and current at all times.
4.3 Customer is obliged to a handle the login data with care, to process it confidentially and to prevent abuse of the login data by any third parties. In particular, this means that login data must be protected against unauthorized disclosure, alteration, unauthorized access or attacks, regardless of their kind.
4.4 The Account is bound to the Customer and may not be transferred to any third party without the explicit consent of Kaizo. Similarly, unless explicitly approved by Kaizo, Customer is not authorized to allow third parties to access their Account by using their login data.
4.5 The Customer guarantees that it has all the rights, consents, licenses etc. required for connecting via an API its third-party customer communication platform account to the Account in accordance with these Terms.
5. Fees and payment
5.1 The usage of the Service is subject to payment of a subscription fee by Customer, unless agreed otherwise in writing. Kaizo accepts payment by credit card and will automatically charge your credit card for all applicable subscription fees on a monthly basis, until the Customer or Kaizo cancels the use of the Service in accordance with article 11 of the Terms.
5.2 Information about the applicable subscription fee and the respective scope of Services is available at https://kaizo.com/pricing/, which is incorporated by reference into these Terms.
5.3 A new Customer may be entitled to a free trial (i.e. a temporary access for trying out the Services free of charge) as explained on the Free Trial section available at https://kaizo.com/pricing/.
5.4 Kaizo reserves the right to adjust the subscription fee and pricing models, as well as to extend, change or limited the functionality of the Services from time to time. In the event Customer does not accept the new fee and/or pricing models, Customer may terminate the use of the Service by deleting its Account. In such event, Customer is not entitled to a refund of the subscription fees already paid unless otherwise agreed in writing.
5.5 Kaizo will refund any prepaid fees for Services unconsumed calculated pro rata where Kaizo has terminated the Agreement pursuant to Article 11.2 of the Terms.
5.6 Unless expressly stated otherwise in writing, payments shall be made by Customer in full, to be received by Kaizo within thirty (30) days following the date of Kaizo’s invoice, by means of transfer into the bank account mentioned on the invoice. All payments shall be made without any deduction on account of any taxes and free of set-off or any counterclaim.
5.6 Without prejudice to any other right or remedy that may be available to the Kaizo, Kaizo shall be entitled to charge interest on the overdue payment at the statutory rate per annum plus 1.5% (one and a half percent) per month or part thereof from the due date until the date of actual payment of the overdue amount. The Customer shall pay the interest together with the overdue amount. Kaizo shall be entitled to cancel or suspend the Services towards the Customer until full payment has been received.
6. Intellectual Property
6.1 The copyright and all other intellectual and industrial property rights in the Service, including hardware, software, databases, designs, equipment, training, testing and examination materials, chips, analyses, datasheets, formula’s, algorithms, methods, documentation, catalogues, reports, quotations, plans and other materials, including preparatory materials in this regard, developed or supplied, directly or indirectly, by Kaizo or made available to the Customer in any way, shall remain exclusively with Kaizo or its Licensor. The Customer shall refrain from infringements of any copyright and other intellectual and industrial property rights of Kaizo and is not allowed to use, remove or modify Kaizo’ trade names, trademarks, trade names, logos, domain names, and other distinctive brand features within the Service.
6.2 The Customer grants Kaizo permission to use Customer’s logo or any other brand materials on the Website. Kaizo shall remove Customer’s logo or any other brand materials on the Website upon first written request of Customer.
7. Data Processing
The terms used in these Data Processing Terms correspond to the terms used in the General Data Protection Regulation (GDPR) and other applicable privacy laws (together: Data Protection Laws). These Data Processing Terms are in accordance with the Data Protection Laws.
By using the Service, Customer processes personal data for its own purposes, which must be carried out in accordance with the Data Protection Laws.
Parties agree that, in respect of the Service and the resulting processing of personal data, Customer acts as Data Controller (Controller) and Kaizo acts as Data Processor (Processor) within the meaning of the Data Protection Laws. Parties will also be referred to as such.
The Data Protection Laws requires Controller to enter into a data processing agreement with Processor. Parties enter into such a data processing agreement via these Data Processing Terms to regulate the processing of personal data by Kaizo on behalf of Customer.
7. 1 Obligations of a data controller
- Data and information: By providing the Service and additional services to Customer, Kaizo will receive and process (personal) data. Customer will also provide all other data which Kaizo may reasonably require to a) provide the Service as agreed in the Terms of Services and b) comply with these Data Processing Terms.
- Compliance with the law: The instructions of Customer to Kaizo regarding the processing of (personal) data must be in accordance with the Data Protection Laws.
7. 2 Obligations of a data processor
- Nature of the processing: The nature of the processing of the personal data consists of, inter alia, collecting, accessing, storing and deleting the personal data.
- Type of personal data and categories of data subjects: The type of personal data processed by Kaizo on behalf of Customer consists of the personal data of Customer’s clients, i.e. names, phone numbers, e-mail addresses and other information regarding the communication with the Customer’s client.
- Compliance with the law: Kaizo will comply with the Data Protection Laws, insofar the obligations are directly aimed at processors.
- Instructions of Controller, purpose and means of the processing: Kaizo will only process the personal data on behalf of Customer, in accordance with Customer’s written instructions (inter alia the instructions as laid down in these Data Processing Terms) and under the responsibility of Customer, unless Kaizo is legally obligated to process the personal data otherwise. Kaizo will not process the personal data for any other purpose than as determined by Customer. Kaizo does not have any control over the purpose and means of the processing of the personal data.
- Confidentiality: Kaizo will treat the personal data and all other information he receives from Customer as confidential. Kaizo ensures that access to this data is limited to employees who need access in order to perform the processing in accordance with these Data Processing Terms. Kaizo ensures all these employees have received adequate training.
- Rights of Data Subjects: Kaizo shall assist Customer in the execution of the rights granted to data subjects, if Customer cannot execute these rights himself and Kaizo is in a position to do so.
- Non-disclosure: A duty of secrecy rests upon all the personal data and other data Kaizo receives under these Data Processing Terms. Kaizo will not provide these data to third parties other than at the explicit written request of Customer, unless Kaizo is legally obliges to do so.
- Data transfer outside the European Union (EU): Kaizo shall not process the personal data outside the EU, unless one of its Sub-Processors is located outside the EU. Kaizo will only transfer the personal data in such cases to countries and organisations in accordance with the standards of the Data Protection Laws. Kaizo will inform Customer at his request in which country or countries the personal data are processed.
- Sub-contracting: Kaizo may sub-contract (parts of) the processing activities to the following parties: Google LLC (cloud services within the EU) (Sub-Processors). Customer gives his consent for sub-contracting the processing of personal data to Sub-Processors, if a (sub) processor agreement is entered into with these parties under the same terms as set out in these Data Processing Terms. Kaizo informs Customer about any adding or replacing of such Sub-Processors. Customer may object to the use of specific Sub-Processors.
- Security Measures: Kaizo will take appropriate technical and organizational security measures to protect the personal data against unauthorized access, loss, destruction, theft or any other unlawful processing. Kaizo will also assists Customer in ensuring compliance with the obligations pursuant to articles 32 to 36 of the GDPR.
- Security incidents: Kaizo will inform Customer about any security incident and/or data breach which may impact the processing of personal data as laid down in these Data Processing Terms. Kaizo will inform Customer immediately after becoming aware of the incident. After reporting the incident, Kaizo will cooperate with Customer in performing a risk assessment, cause analysis and determining corrective measures. Kaizo will cooperate with Customer in performing all required corrective measures which has been agreed between the Parties.
- Removal of data after termination Data Processing Addendum: As soon as these Data Processing Terms terminate, Customer may transfer all (personal) data which are held by Kaizo under these Data Processing Terms to another location, for a period of 30 days. After this term, Kaizo will remove or destroy all (personal) data (including all possible copies thereof), unless Kaizo is legally obliged to retain the data.
- Audits: Customer has the right to execute audits and inspections regarding the compliance of all (security) obligations by Kaizo under these Data Processing Terms. Customer shall timely inform Kaizo about any audit or inspection. Kaizo shall timely make available all information which makes the audit or inspection possible or contributes to this.
- Indemnification and liability: Kaizo shall indemnify Customer against all damages for which Kaizo is liable. Kaizo is only liable for damages caused by (i) non-compliance with legal obligations in the Data Protection Laws directly addressed to processors; or (ii) non-compliance with these Data Processing Terms. Kaizo is not liable for any damages or loss which result from following instructions of Customer, if these instructions conflict with the Data Protection Laws.
7. 3 Miscellaneous
- These Data Processing Terms come into effect on the same date and is entered into for the same term as the Terms. Therefore, the processing of personal data by Kaizo behalf of Customer will last as long as Kaizo provides its services to Customer and the Data Processing Terms are effective.
- If any provision of the Terms at any time conflicts with the provisions of these Data Processing Terms, these Data Processing Terms shall prevail regarding this subject matter.
- These Data Processing Terms replace any previous agreements or commitments regarding this subject matter between the Parties, both in writing and verbal, including any correspondence.
8. Liability and indemnification
8.1 Kaizo shall make the Service available to Customer “as is” and “as available” with all faults and without any warranty of any kind. Kaizo and its Affiliates does not warrant that (a) the Service will be free from viruses and meet Customer’s requirements; (b) the Service will be timely, secure, uninterrupted or error-free at all times; (c) the data arising out of the use of the Service will be complete and accurate and fit for purpose and (d) all errors in the Service will be corrected.
8.2 Kaizo shall under no circumstances whatsoever be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profits, loss of data or documents, work stoppage, production failure, business interruption, impairment of other goods or otherwise and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise.
8.3 No action by Customer shall be brought unless Customer first provides written notice to Kaizo of any claim alleged to exist against Kaizo within thirty (30) days after the event resulting in such claim materialized or first becomes known to Customer and an action is commenced by Customer within twelve (12) months after such notice.
8.4 Notwithstanding anything herein contained to the contrary, the total liability of Kaizo for any and all claims for direct damages arising out of or in connection with the Services and the use thereof shall under no circumstances exceed the sum of Customer’s payments for the Services that are the subject of the claim.
8.5 Customer shall indemnify and hold Kaizo and its Affiliates harmless in full against any and all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation loss of profit, economic loss, future revenue, reputation and goodwill) made against or incurred or suffered by any of them and arising out of or in connection with the Services or Customers’ use thereof or resulting directly or indirectly from breach by Customer of these Terms, any other conditions, contract, any laws, regulations and guidelines applicable to the Services and the use thereof.
9. Force Majeure
9.1 None of the parties shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws, statutes, ordinances, regulations, legislative measures, acts of governments or other administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labor disturbances, emergency repair or maintenance, data network or telecommunication facilities failures (“Force Majeure”).
9.2 In case of Force Majeure on the part of Kaizo, its obligations shall be suspended. If the Force Majeure lasts more than three (3) months, Kaizo and the Customer are both entitled to cancel the use of the Service.
10. Confidentiality
10.1 Customer shall treat any information and know-how received from Kaizo as strictly confidential and this information and know-how shall not be communicated to third parties by the Customer without Kaizo’ prior permission in writing. Nor shall the Customer use this information and know-how for any cases other than explicitly provided for in these Terms.
10.2 Customer acknowledges that software from Kaizo that is being used to provide the Service shall always be deemed part of the confidential information.
10.3 Breach of this article by the Customer will result in an immediately payable penalty by the Customer to Kaizo of EUR 25,000 per event, besides Kaizo being entitled to a compensation of all its damages and other recourses under the applicable laws.
11. Termination
11.1 Kaizo shall be entitled to terminate these Terms by cancelling access to the Service with immediate effect and without the obligation to reimburse the subscription fees already paid by the Customer unless otherwise agreed in writing, if the Customer: (i) is granted a temporarily or definite moratorium of payment (‘surséance van betaling’); (ii) is declared bankrupt or files for bankruptcy; (iii) acts in material breach of the articles of the Terms and after it has not, within a reasonable period, fulfilled its obligations; or (iv) acts in material breach of the articles of the Terms whilst the fulfilment or correction is no longer possible. No (timely) payment of the subscription fees qualifies as a material breach.
11.2 Kaizo has the right to terminate these Terms and cancel the use of the Service at any time for convenience, with due observance of a notice period of two (2) months.
11.3 Customer has the right to terminate these Terms and cancel the use of the Service at any time for convenience by following these two steps: 1) uninstall our Service and 2) notify Kaizo in writing about the cancellation. After receiving the written notification, Kaizo shall refrain from downloading new Customer Data and delete the historical Customer Data. Subscription fees already paid will not be reimbursed unless otherwise agreed in writing.
11.4 Customer has the right to cancel paid subscriptions by written notice 30 days in advance of the subscription term’s end. Otherwise, paid subscriptions auto-renew with the same subscription term.
12. Miscellaneous
12.1 Kaizo reserves the right to revise the Terms at any time by giving one (1) month prior notice to Customer. These revisions will become effective immediately after the one (1) month notice period.
12.2 Customer shall not have the right to transfer the rights and obligations arising from the use of the Service under these Terms to third parties, without the prior written consent of Kaizo.
12.3 If any article of these Terms is or shall become invalid or unenforceable, in whole or in part, the other articles shall remain in full force and effect. The invalid or unenforceable article shall, where appropriate, be replaced in accordance with the meaning and purpose of these Terms.
12.4 Kaizo and Customer agree that valid, enforceable and binding obligations may result from electronic means of communication. Any electronic communication between Kaizo and Customer shall be considered to be a “writing” and/or “in writing”.
13. Applicable law and disputes
13.1 The parties’ rights and obligations arising out of or in connection with these Terms shall be governed, construed, interpreted and enforced according to the laws of The Netherlands.
13.2 The parties agree that any suits, actions or proceedings that may be instituted by any party shall be initiated exclusively before the competent court in The Netherlands.
14. Contact
For any questions about the Service and/or the Terms, please contact Kaizo by sending an email to terms@kaizo.com.
