Last Modified: June 12, 2018
Introduction
1.1 WhatsApp develops and operates a business service to enable businesses to communicate with WhatsApp consumer users on the WhatsApp network (“WhatsApp Business Solution”). As a distributor of the WhatsApp Business Solution, Facebook Ireland Limited is the contracting entity offering you access to the WhatsApp Business Solution, unless you are located in the United States, Canada, or Brazil, in which case, Facebook, Inc. is the contracting entity offering you access to the WhatsApp Business Solution (collectively, “Facebook”, “us”, “we”, or “our”).
1.2. By creating a WhatsApp business account, you and the company, including any Affiliates, that you are authorized to represent (“you”, “your”, or “Company”) agree to these Facebook Terms for WhatsApp Business and all other applicable terms and policies that are incorporated by reference as described below (collectively, “Agreement”). You represent and warrant that you are entering into this Agreement on behalf of a company or other legal entity (including any Affiliates), for which you have full authority to bind to this Agreement. “Affiliate” means any entity which, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with you. “Control” means the power to direct the management of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or equivalent voting interests of the entity.
1.3. Capitalized terms are defined contextually in this Agreement, and otherwise in any additional, applicable terms that are incorporated into this Agreement by reference.
WhatsApp Business Accounts
2.1. The WhatsApp Business Solution is comprised of a software client (“WhatsApp Business Client”), which you use (on your own behalf or on behalf of your business customers for which you are a service provider) to interact with our messaging and other APIs (“WhatsApp Business APIs”), in order to send messages or use other available features to interact with other WhatsApp consumer users on the WhatsApp network. To use the WhatsApp Business Solution, you must create a WhatsApp business account (“WABA”). To access the WhatsApp Business APIs, you must have a Facebook Business Manager account to link to your WABA.
2.2. WhatsApp provides the WhatsApp Business Solution to you under additional terms set forth in the WhatsApp Business Solution Terms. Additionally, if you are an authorized service provider to your business customers and are accessing the WhatsApp APIs on their behalf, the additional terms set forth in the WhatsApp Business Terms for Service Providers also apply to you. When you use the WhatsApp Business Solution, you agree to these additional terms and they are incorporated into this Agreement by reference.
Facebook Accounts
3.1 Facebook is a distributor of the WhatsApp Business Solution, and WhatsApp works with Facebook to provide you various tools and features required to access the WhatsApp Business Solution, including:
Facebook Business Manager (management of fees, payment, business insights, analytics, message template creation, technical support)
Facebook for Developers (technical documentation)
3.2. When you link your Facebook Business Manager account(s) and Facebook for Developers account with your WABA, WhatsApp will provide to Facebook your data, metrics, and other information related to your use of the WhatsApp Business Solution, in order for Facebook to bill your account, invoice you, receive payments from you, and provide you with business insights, analytics, technical documentation, and product and technical support. Facebook provides you with support for the WhatsApp Business Solution and endeavors to provide you initial acknowledgment no more than 4 hours following receipt of your request. The Facebook Terms and the Facebook Commercial Terms applicable to Facebook Business Manager and Facebook for Developers, and any other additional Facebook terms relevant for any other Facebook-provided services, govern your use of those services.
Order of Governing Terms. To the extent of any conflict between these Facebook Terms for WhatsApp Business, the Facebook Terms, Facebook Commercial Terms, and any other additional Facebook terms that govern Facebook-provided services, these Facebook Terms for WhatsApp Business will control with respect to Facebook’s distribution of, and your access to and use of, the WhatsApp Business Solution. To the extent of any conflict between the WhatsApp Business Solution Terms and the WhatsApp Business Terms of Service, the WhatsApp Business Solution Terms governs. To the extent of any conflict between the WhatsApp Business Terms for Service Providers and the WhatsApp Business Solution Terms, the WhatsApp Business Terms for Service Providers governs.
Fees, Taxes, Invoicing, and Payment
5.1. Fees. You agree to pay Facebook for access to the WhatsApp Business APIs according to the list prices and pricing rules set forth in our Rate Card, and we will invoice you under each of your Facebook Business Manager accounts associated with your WABAs. WhatsApp and Facebook data will be the sole basis for invoices that we issue to you. We have the right to update the Rate Card on a monthly basis, and changes to list prices and pricing rules will take effect the first day of the calendar month following such changes to the Rate Card. Fees under this Agreement may be invoiced and must be paid in USD, unless we support invoicing and receiving payment in your local currency. Fees will be settled in full in accordance with your payment method as set forth below. Any late payments are subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5.2. For Service Providers. We will bill and invoice you for your business customer’s (“Client”) access and usage of the WhatsApp Business APIs, including for all fees associated with the WABAs under each of your Business Manager accounts, and you will be solely responsible for payment of such fees to Facebook.
5.3. Taxes. The amounts we charge you may be subject to and include applicable taxes and levies, including withholding taxes. You are responsible for bearing and remitting any taxes that apply to your transactions. You will indemnify and hold us harmless from and against any claim arising out your failure to do so.
5.4. Payment Method. When you enter into this Agreement, you agree to settle fees as either an invoiced or non-invoiced customer. Invoiced customers are those to which Facebook extends a credit line for the WhatsApp Business Solution and issues invoices on a periodic basis for payment in accordance with the applicable invoicing terms. Non-invoiced customers will have their funding instrument charged for usage. In its sole discretion, Facebook may classify you as an invoiced customer or non-invoiced customer, based upon a variety of factors. Unless Facebook notifies you otherwise, we will endeavor to classify you as an invoiced customer, and if your credit line application is successful, then the Section below titled “Invoiced Customers” applies to you. However, in our sole discretion, we may decide to classify you as a non-invoiced customer, in which case the Section titled “Non-invoiced Customers” will apply to you.
5.5. Invoiced Customers. Facebook will extend a line of credit to you and will issue you invoices on a monthly basis. You will pay all fees due under this Agreement, in full and cleared funds as directed by us. All fees are due within 30 days following the invoice date.
5.6. Non-Invoiced Customers. Non-invoiced customers must provide a funding instrument and confirm that you are permitted to use that funding instrument. When you fund a transaction, you authorize us (and our designated payment processor) to charge the full amount to the funding instrument you designate for the transaction. You also authorize us to collect and store that funding instrument along with other related transaction information.
5.6.1. Authorization. If you pay by credit or debit card, we may obtain a pre-approval from the issuer of the card for an amount, which may be as high as the full price of your payment. Your card will be charged at the time you initiate a payment or shortly thereafter. If you cancel a transaction before completion, this pre-approval may result in those funds not otherwise being immediately available to you.
5.6.2. Failed Payments. If you pay by debit card and your load transaction results in an overdraft or other fee from your bank, you alone are responsible for that fee.
5.7. Credit Report. You agree that we may obtain your business credit report from a credit bureau during the term of this Agreement.
5.8. Suspension. Without affecting our other rights under this Agreement, if you do not pay any fees by the due date, we may suspend all or part of your access to the WhatsApp Business APIs until you make payment in full. We will endeavor to provide you with notice prior to suspension.
Term and Termination
6.1. Term. This Agreement is effective from the date you create your WABA and will continue until terminated as permitted herein.
6.2. Termination for Convenience. Facebook may terminate this Agreement at any time, for any or no reason, upon 30 days’ advance written notice to you, subject to a wind-down period of up to 3 months following the effective date of the termination, during which time you will still be responsible for payment of all fees incurred during the wind-down period for use of the WhatsApp Business APIs. You may also terminate this Agreement at any time, for any or no reason, upon 30 days’ advance written notice to Facebook; if you exercise your right to terminate for convenience, there will be no wind-down period.
6.3. Suspension and Termination. Facebook may immediately suspend your access to the WhatsApp Business APIs or terminate this Agreement if you breach this Agreement (including any terms or policies incorporated by reference), or if we deem such action necessary to comply with applicable laws or to prevent harm to the security, stability, availability, or integrity of Facebook, WhatsApp, and the other Facebook Companies. Termination of this Agreement will result in termination of your access to the WhatsApp Business APIs. Upon termination, we will remove your access to the WhatsApp Business APIs, and you also agree to delete promptly the WhatsApp Business Client and any related software code.
6.4. Deletion of Your Data. Upon termination of this Agreement, except for data that we retain for a limited amount of time as required by law or best practices related to financial, tax, operational record-keeping, or audits, Facebook will delete any data related to the WhatsApp Business Solution from your Facebook Business Manager account and your Facebook for Developers account; however, you understand that deleted content may persist in backup copies for a reasonable period of time while deletion is carried out.
6.5. Effect of Termination. Upon any termination or expiration of this Agreement: (a) you must immediately cease using the WhatsApp Business Solution, except during a wind-down period; (b) at the disclosing party’s request, the receiving party will promptly return or delete any of the disclosing party’s confidential information in its possession; and (c) you will promptly pay Facebook any unpaid fees incurred prior to termination (unless Facebook has otherwise provided you a written statement waiving such payment). Except as may be specified in this Agreement, either party’s exercise of any remedy, including termination, is without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Termination of this Agreement does not automatically terminate any other terms of service that are incorporated by reference into this Agreement which govern other Facebook-provided services that you may use without relation to the WhatsApp Business Solution (e.g., the Facebook Terms and Facebook Commercial Terms may still continue in effect so that you may use Facebook Business Manager for other Facebook-provided products and services); such terms of service may continue in effect until otherwise terminated in accordance with the terms therein. The following provisions of these Facebook Terms for WhatsApp Business will survive termination: Section 5 (Fees, Taxes, Invoicing, and Payment) to the extent there are outstanding fees due, and Section 7 (General).
General
7.1. Changes. Facebook may update this Agreement, including any of the additional terms, policies, or documentation incorporated into this Agreement by reference ("Change"). Unless otherwise required by law, we will notify you before we make a Change. By continuing to use the WhatsApp Business Solution after such notice, you consent to such Change.
7.2. Governing Law. This Agreement, as well as any claim that might arise between you and us, are governed by and construed in accordance with the laws of the United States and the State of California, as applicable, without giving effect to their principles of conflicts of law. Any claim or cause of action arising out of or relating to this Agreement must be commenced exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and each party hereby consents to the personal jurisdiction of such courts.
7.3. Entire Agreement. This Agreement, and any additional terms agreed upon between you and Facebook or WhatsApp, comprise the entire agreement between the parties regarding the WhatsApp Business Solution, and unless expressly agreed upon otherwise between the parties, supersedes any prior representations or agreements. Headings are for convenience only, and terms such as “including” are to be construed without limitation. This Agreement is written in English (US). We may provide you with translated versions of this Agreement for your convenience, but the English (US) version of this Agreement is the version that governs.
7.4. Waiver and Severability. Failure to enforce a provision will not be deemed a waiver; waivers must be in writing and signed by the waiving party. Any terms or conditions in any customer purchase order or business form will not modify this Agreement and are hereby expressly rejected, and any such document will be for administrative purposes only. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid, or otherwise contrary to law, such provision will be interpreted so as to best accomplish its intended objectives and the remaining provisions of this Agreement will remain in full force and effect.
7.5. Publicity. Any press release, publicity, or public announcement about the parties’ relationship requires the prior written approval of both parties.
7.6. Assignment. Neither party may assign this Agreement or its rights or obligations under this Agreement without the prior written consent of the other party, except that Facebook may assign this Agreement without consent to another member of the Facebook Companies or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Non-permitted assignments are void and will create no obligations on Facebook.
7.7. Independent Contractor. The parties are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has authority to bind the other.
7.8. Notices. Any notice under this Agreement must be in writing. You must send any notices to Facebook at the following address (as applicable): in the case of Facebook Ireland Limited, to 4 Grand Canal Square, Grand Canal Harbour, Dublin 2, Ireland, Attn: Legal and; in the case of Facebook, Inc., to 1 Hacker Way, Menlo Park, CA 94025 USA, Attn: Legal. Facebook may send notices to the email address that you provided in your Facebook Business Manager account. Facebook may also provide operational or other business-related notices regarding the WhatsApp Business Solution via messages or conspicuous posting within Facebook Business Manager.
7.9. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power, telecommunications, data networks, or services, or refusal of a license or authorization by a government agency or entity.
7.10. Conditions on Governmental Entity Use. If you are a governmental entity, you represent that: (a) you are not restricted by any applicable law, policy, or principle from agreeing and performing, or accepting performance of, any term or condition of this Agreement; (b) no applicable law, policy, or principle renders any term or condition of this Agreement unenforceable against you or any applicable governmental entity; (c) you are authorized to, and have the legal capacity under applicable laws, policies, and principles to represent and bind any applicable governmental entity to the terms and conditions of this Agreement; and (d) you enter into this Agreement based upon an impartial decision concerning the value of the WhatsApp Business Solution to you and your customers, and no improper conduct or conflict of interest has influenced your decision to enter into this Agreement. If a governmental entity accepts this Agreement in violation of this Section, Facebook may elect to terminate this Agreement, or the parties may enter into a separate mutually agreeable and enforceable agreement, or may mutually agree to modify this Agreement and execute such a modification.