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Effective as of April 15, 2019

mParticle Accelerator Program Agreement

Terms and Conditions

These Terms and Conditions (including any attached schedules, the “Terms and Conditions”) are by and between mParticle, Inc. (“mParticle”) and the entity or person placing accessing the mParticle Platform (“Customer”) (the Terms and Conditions, the “Agreement”). Each of mParticle and Customer may be referred to herein individually as a “Party” or collectively as the “Parties.”

The “Effective Date” of this Agreement is the date of Customer’s initial access to the mParticle Platform (as defined below) through any online provisioning, registration or order process.

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Modifications

Customer acknowledges and agrees that mParticle may modify the terms and conditions of this Agreement at any time in accordance with Section 10 (Modifications to Agreement).

BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, CUSTOMER AGREES TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THIS SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.    

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Background

mParticle is a software technology company which has developed a software as a service platform that enables enterprises to (1) collect, organize and synchronize data from apps, web, connected devices, and offline data sources and (2) distribute such data to various service providers, including analytics, monetization, data warehousing and other services.  As such, mParticle functions as a core data and services orchestration layer for enterprises.

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1. License Grant

1.1 mParticle Platform  

mParticle will make its software platform available to Customer via the Internet (the “mParticle Platform”) pursuant to this Agreement and the applicable Order during the Term (as defined below). Once provisioning is completed by mParticle, the Customer has access to and can utilize the mParticle Platform.  Subject to the terms and conditions of this Agreement, mParticle hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicensable right and license to access and use the mParticle Platform during the Term solely for Customer’s use.  

1.2 mParticle SDK  

mParticle will make its software development kit (in object code format only) available to Customer via the mParticle Platform (the “mParticle SDK”).  Subject to the terms and conditions of this Agreement, mParticle hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicenseable right and license to (a) download and internally use the mParticle SDK, (b) incorporate the mParticle SDK into Customer’s  web and/or mobile apps and connected devices set forth in the Order (collectively, the “Properties Supported”), (c) to distribute and otherwise make available the mParticle SDK as incorporated in the Properties Supported, and (d) to send data server-to-server via mParticle’s Application Programming Interface (API).

1.3 License Grant Limitations

The following limitations and restrictions shall apply to the mParticle Platform:

  • Restricted Access: The Customer shall not provide access to the mParticle Platform to any person who is not an employee or contractor of Customer.   
  • Except as expressly permitted hereunder Customer shall not and shall not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the mParticle Platform or mParticle SDK; (ii) modify, translate or create derivative works based on any of the mParticle Platform or mParticle SDK; (iii) copy (except for archival purposes), rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the mParticle Platform or mParticle SDK; (iv) use any of the mParticle Platform or mParticle SDK for timesharing or service bureau purposes or (except as expressly permitted by the mParticle Platform) otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the mParticle Platform or mParticle SDK or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (vi) remove or obscure any proprietary notices or labels of mParticle or its suppliers on any of the mParticle Platform or mParticle SDK.

1.4 Access Credentials and mParticle API Keys

Customer and Customer’s authorized users are solely responsible for the confidentiality and use of their username and password (“Access Credentials”) and mParticle API keys (“mParticle API Keys”) that Customer and Customer’s authorized users use to access and use the mParticle Platform and mParticle SDK. Customer shall immediately notify mParticle if any Access Credentials and/or mParticle API Keys have been stolen or compromised. Customer acknowledges and agrees that Customer shall be responsible for all activities that occur under Customer’s and Customer’s authorized users’ Access Credentials and mParticle API Keys, including but not limited to, any misuse, communications, or any data (including Customer Data) entered through such Access Credentials and mParticle API Keys.  mParticle shall not be liable for any loss or damage caused by any unauthorized use of any Access Credentials and/or mParticle API Keys. Customer shall be responsible for any and all loss, damage and expense incurred by mParticle as a result of any unauthorized use of any Access Credentials and/or mParticle API Keys.

1.5 Service Limitations

mParticle reserves the right, in its sole discretion, to throttle and/or cap Customer’s use of the mParticle Platform and/or mParticle SDK and/or mParticle APIs in the event Customer’s usage of mParticle Platform and/or mParticle SDK and/or mParticle APIs exceeds any of the following Service Level Limitations located here: http://docs.mparticle.com/guides/default-service-limits/ If stipulated service level limitations conflict with this agreement, then this agreement will govern.

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2. Ownership; Reservation of Rights

2.1 Customer Data

Customer owns the data derived or collected by the mParticle SDK incorporated into the Supported Properties and data input by Customer into the mParticle Platform (“Customer Data”).  Customer hereby grants to mParticle a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable, right and license to copy, distribute, display and create derivative works of and use the Customer Data to perform mParticle’s obligations under this Agreement.  Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses therein expressly granted to mParticle under this Agreement. Except as expressly permitted hereunder or as authorized by Customer in connection with its use of the mParticle Platform, mParticle shall not and shall not authorize any third party to:

a. rent, sublicense, transfer, disclose, use, or grant any rights in, or share or provide access to any Customer Data, in any form, collected and created under this Agreement;

b. collect, use, combine, aggregate, or commingle the Customer Data for the benefit of any third party where such collection, use, combination, aggregation or commingling of such Customer Data is for the purpose of or results in the segmenting, building or supplementing profiles of users, or is for use in online preference marketing to users, or to perform tracking, targeting, or re-targeting of users, in each case for the benefit of any third party;

c. disclose the Customer Data to third party advertisers or publishers in any manner that would readily identify Customer’s methods, techniques, scope or scale of Customer Data collection, products or services; or

d. combine the Customer Data with any third party data except as specifically permitted hereunder.

2.2 mParticle Platform and mParticle SDK Ownership; Reservation Of Rights

Customer acknowledges and agrees that, as between the parties, mParticle retains all rights title, and interest in and to the mParticle Platform and mParticle SDK, all copies or parts thereof (by whomever produced) and all intellectual property rights therein.  mParticle grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the mParticle Platform and mParticle SDK. Customer shall acquire no, rights, title, or interest in and to the mParticle Platform or mParticle SDK or any copies thereof (by whoever produced) other than the limited licensed rights expressly granted under this Agreement.  Customer will not remove, obscure, or alter any intellectual property rights notices relating to the mParticle Platform or mParticle SDK.

2.3 Feedback

Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to mParticle with respect to the mParticle Platform and/or mParticle SDK.  mParticle shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants mParticle a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

2.4 Customer Responsibilities

Customer shall (a) use commercially reasonable efforts to prevent unauthorized access to or use of the mParticle Platform and mParticle SDK and notify mParticle promptly of any such unauthorized access or use, and (b) use mParticle Platform and mParticle SDK only in accordance with the documentation and applicable laws and regulations.

2.5 Privacy; Data Security

mParticle shall implement and maintain reasonable administrative, physical and technical safeguards (“Safeguards”) which attempt to prevent any collection, use or disclosure of, or access to Customer Data that this Agreement does not expressly authorize, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Customer Data.  Such information security program would include: (i) physical security of all premises in which Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to the employment of, access given to, and education and training of any and all personnel furnished or engaged by mParticle to perform any part of the services hereunder.

2.6 Consumer Privacy

Each of mParticle and Customer are committed to protect the privacy of consumers. mParticle is offering Customer access to the mParticle Platform and mParticle SDK and has no visibility, liability or responsibility for (a) Customer’s compliance with applicable privacy standards, laws or regulations in connection with Customer’s use of the mParticle Platform or mParticle SDK, or (b) Customer’s collection, use, storage, distribution or other exploitation of any Customer Data using the mParticle Platform or mParticle SDK. Customer is responsible for providing legally sufficient notices to users and (where required by applicable law) must obtain appropriate consent from users for Customer’s information collection and use practices relating to the mParticle Platform including but not limited to the use of cookies and similar technologies for tracking purposes in connection with the Platform.  Customer shall not use the mParticle Platform or the mParticle SDK to collect, transmit, provide, or otherwise make available to the mParticle Platform “sensitive information”, which is defined as the following personally identifiable information about an individual:  his or her financial account numbers, insurance plan numbers, precise information about health or medical conditions, and government-issued identifiers (such as a Social Security number), as well as those elements described as sensitive information under applicable law and/or the applicable “Self-Regulatory Code(s)” (as defined below). Subject to the foregoing, each Party agrees to comply with all applicable privacy laws and regulations with respect to the collection, storage and use of Customer Data, including but not limited to: (i) Section 5 of the FTC Act; (ii) to the extent that pursuant to this Agreement, Customer is collecting data from users located in the European Union and/or Switzerland, the 95 Privacy Directive, the ePrivacy Directive and the U.S. / EU and U.S. / Swiss Privacy Shield Frameworks (available at https://www.privacyshield.gov/) and (iii) as applicable, the Digital Advertising Alliance Code in the U.S. (available at www.AboutAds.info, the “DAA Code”), the DAA EU Code  (available at www.edaa.eu/about/, and the DAA Canada (available at http://youradchoices.ca/the-principles/) (collectively, the “Self-Regulatory Codes”).  Each Party further agree to maintain a privacy policy that is: (a) in compliance with applicable laws, rules and regulations; and (b) discloses its respective privacy and data practices as contemplated by this Agreement.  Customer will post such a privacy policy conspicuously on each of its Supported Properties. Each privacy policy required under this section must provide (e.g., via link) a choice mechanism that is in line with the applicable Self-Regulatory Code(s) to the extent that such privacy policy should reasonably provide a choice mechanism pursuant to the such Self-Regulatory Codes.

2.7 Privacy Shield Data Transfers

Customer acknowledges that mParticle is a participant in the EU and Swiss Privacy Shield programs administered by the U.S. Department of Commerce, and that all data processed by mParticle pursuant to the provision of the mParticle Services is stored on servers located in the United States. To the extent that the provision of the mParticle Services involves any transfers of data that includes personal data that is subject to data transfer restrictions or requirements under applicable Laws, including but not limited to Directive 95/46/EC or any successor legislation: (a) Customer shall use and disclose the information only for the purposes permitted by the Agreement; and (b) Customer will provide at least the same level of protection for the information as is available under the EU-U.S. and Swiss-U.S. Privacy Shield frameworks. If Customer determines that it can no longer provide this level of protection: (a) Customer will promptly notify mParticle of this determination; (b) mParticle shall have the right to terminate the Agreement without penalty upon notice to Customer; and (c) Customer will cease processing the information or take other reasonable and appropriate steps to remediate the situation. Customer authorizes mParticle to provide this Section 2.7 of the Agreement to the Department of Commerce upon its request (as required under the Accountability for Onward Transfer Principle of the Privacy Shield).  

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3. Fees; Payment Terms

3.1 Fees

Customer will pay mParticle such fees at such times as indicated on the Order.  mParticle calculates and bills overage fees and charges monthly. mParticle calculates overage fees on a Monthly Tracked User (MTU) basis. An MTU is an mParticle Id that has any activity in a calendar month.  An mParticle Id is defined as a single user profile record created for a specified workspace as governed by the customer's desired identity strategy. Any calculated overages per the order form will be billed in arrears on a monthly basis. If a customer has tiered pricing the customer’s usage may increase and the cost thereafter (until another increase) shall be as set forth in a table on the order form. There will be no reversion to lower tiers. For each month where the pricing will be based on tiers other than the first tier, mParticle shall invoice the customer for the difference between the monthly cost applicable to such tier and the previous tier. Such invoice shall be payable by the customer within thirty (30) days after receipt of invoice.

3.2 Payment Terms

If payment of any fees (including any reimbursement of expenses) is not made when due and payable, a late fee shall accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection.  In addition, if any past due payment has not been received by mParticle within thirty (30) days from the time such payment is due, mParticle may suspend access to the mParticle Platform until such payment is made. At its discretion, mParticle may increase the pricing stated on the Order for any Renewal Term (as defined below) upon giving Customer at least sixty (60) days notice (which may be sent by email) prior to the end of the then-current Term.

3.3 Net of Taxes

All amounts payable by Customer to mParticle hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes").  Customer shall be solely responsible for payment of any Taxes, except for those taxes based on the income of mParticle.  Customer will not withhold any Taxes from any amounts due mParticle.

3.4 Reimbursable Expenses

Customer will reimburse mParticle for travel expenses associated with ongoing support, such as Quarterly Business Reviews (QBRs) and on site visits, provided that Customer approves such activities via email beforehand and mParticle complies with applicable Customer Travel and Expense Policy.

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4. Term, Termination

4.1 Term

The Initial Term of this Agreement shall be as set forth on the Order. Thereafter, unless the Agreement terminates earlier in accordance with the terms of this Agreement, the Agreement shall automatically renew for additional terms equal to the duration of the Initial Term (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either Party delivers to the other Party written notice at least sixty (60) days prior to the end of the then-current Term of the Party’s intent not to renew the Term.

4.2 Termination; Effect of Termination

In addition to any other remedies it may have, either party may also terminate this Agreement if the other party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days’ notice (or ten (10) days in the case of nonpayment) after receiving notice thereof. Upon any termination or expiration of this Agreement for any reason: (i) mParticle may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data stored or otherwise archived on the mParticle Platform or on mParticle’s network; (ii) all rights granted hereunder and all obligations of mParticle to provide the mParticle Platform and mParticle SDK shall immediately terminate and Customer shall cease use of the mParticle Platform and mParticle SDK; and (iii) Customer will pay in full for the use of the mParticle Platform and mParticle SDK up to the date of such termination or expiration.   

4.3 Survival

Upon expiration or termination of this Agreement, all obligations in this Agreement shall terminate, provided that Sections  2.2 (mParticle Platform and mParticle SDK Ownership), 2.3 (Feedback), 3 (Fees; Payment Terms), 4.2 (Termination; Effect of Termination), 5 (Confidentiality), 7 (Limitations of Liability; Indemnification), 9 (General), and 4.3 (Survival) shall survive.

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5. Confidentiality

5.1

As used herein, “Confidential Information” means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. For the avoidance of doubt, mParticle’s Confidential Information includes, without limitation, the mParticle Platform, mParticle SDK and the terms of this Agreement. Notwithstanding the foregoing, “Confidential Information” shall not include information that: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by Receiving Party without use of the Confidential Information of the Disclosing Party. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it shall use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder.  Each Party will use reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose the terms of this Agreement, in whole or in part (a) to its employees, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), existing and prospective investors or acquirers contemplating a potential investment in or acquisition of a Party, sources of debt financing, acquirers and/or subcontractors who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (b) as reasonably deemed by a Party to be required by law (in which case each Party shall provide the other with prior written notification thereof, shall provide such Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.

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6. Representations, Warranties, and Disclaimer

6.1 Representations and Warranties

Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.

6.2 Uptime

mParticle shall use reasonable efforts consistent with prevailing industry standards to provide the mParticle Platform in a manner that minimizes errors and interruptions in accessing the mParticle Platform.  mParticle Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by mParticle or by third-party providers, or because of other causes beyond mParticle’s reasonable control, but mParticle shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within mParticle’s control.

6.3 Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH OF THE MPARTICLE PLATFORM AND MPARTICLE SDK IS PROVIDED ON AN “AS-IS” BASIS AND MPARTICLE DISCLAIMS ANY AND ALL WARRANTIES.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.  NEITHER PARTY WARRANTS AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY OR AGAINST INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.  NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.

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7. Limitations of Liability; Indemnification

7.1 Disclaimer of Consequential Damages

THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1 (LICENSE GRANT) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.  

7.2 General Cap on Liability

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1 (LICENSE GRANT) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7.4 AND 7.5 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO MPARTICLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.

7.3 Independent Allocations of Risk

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

7.4 Indemnification by mParticle

mParticle shall indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from any and all losses, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees (collectively, the “Liabilities”) incurred by the Customer Indemnified Parties  in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from the use of the mParticle Platform or mParticle SDK in accordance with this Agreement infringing or misappropriating any third-party intellectual property rights. Notwithstanding the foregoing, mParticle shall have no liability or obligation under this Section 7.4 with respect to any Liability if such Liability is caused in whole or in part by (x) modification of the mParticle Platform or mParticle SDK by any party other than mParticle without mParticle’s express consent; (y) the combination, operation, or use of the mParticle Platform or mParticle SDK with other product(s), data or services where the mParticle Platform or mParticle SDK would not by itself be infringing; or (z) unauthorized or improper use of the mParticle Platform or mParticle SDK.  If the use of the mParticle Platform or mParticle SDK by Customer has become, or in mParticle’s opinion is likely to become, the subject of any Claim, mParticle may at its option and expense (a) procure for Customer the right to continue using the mParticle Platform or mParticle SDK as set forth hereunder; (b) replace or modify the mParticle Platform or mParticle SDK to make it non-infringing so long as the mParticle Platform or mParticle SDK has at least equivalent functionality; (c) substitute an equivalent for the mParticle Platform or mParticle SDK or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement. This Section 7.4 states mParticle’s entire obligation and Customer’s sole remedies in connection with any claim related to infringement or misappropriation of the intellectual property rights of any third party by the mParticle Platform or mParticle SDK.

7.5 Indemnification by Customer

Customer shall indemnify, defend and hold mParticle and the officers, directors, agents, and employees of mParticle (“mParticle Indemnified Parties”) harmless from Liabilities incurred by the mParticle Indemnified Parties in connection with any Claim: (a) arising from or related to any use or disclosure by Customer of any mParticle Platform or mParticle SDK in violation of this Agreement; (b) a breach by Customer of Section 2.6; or (c) arising from or related to the Customer Data.

7.6 Indemnification Procedure

If a Customer Indemnified Party or a mParticle Indemnified Party (each, an “Indemnified Party”) becomes aware of any Claim it believes it should be indemnified under Section 7.4 or Section 7.5, as applicable, the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Claim.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Claim with counsel of its own choosing.  Any compromise or settlement of a Claim will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

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8. Professional Services

mParticle offers its customers implementation, training, customization, and other services relating to the mParticle Platform and mParticle SDK (the “Professional Services”).  Any Professional Services to be provided by mParticle to Customer will be set forth in a statement of work, in the form attached as Appendix A, which references this Agreement and is signed by authorized representatives of the Parties (each, a “Statement of Work”).  Each Statement of Work will describe the Professional Services to be provided by mParticle, the fees to be paid by Customer for such Professional Services, and any other terms and conditions that may be agreed to by the Parties with respect to such Professional Services.  Each Statement of Work is deemed incorporated into, and made a part of, this Agreement and will be governed by the terms and conditions of this Agreement. To the extent any provision set forth in a Statement of Work conflicts with any provision set forth elsewhere in this Agreement, the provision set forth elsewhere in this Agreement will control.  Unless otherwise expressly provided in a Statement of Work, all rights, title, and interest to and in any work product developed pursuant to the Professional Services (including, but not limited to, all copyrights, patents, trademarks, and other intellectual property rights relating thereto) (collectively, “Work Product”) will be owned by mParticle and will be deemed to be included in the definition of mParticle Platform and mParticle SDK (as applicable) and licensed to Customer on the terms set forth herein.

Unless otherwise noted in Appendix A, professional services will be delivered from effective date to the earlier of 6 months or when the included apps go live.

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9. General

Customer may not remove or export from the United States or allow the export or re-export of the mParticle Platform, mParticle SDK or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither Party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other Party’s prior written consent; provided however, that either Party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.  Any assignment or attempted assignment by either Party other than in accordance with this Section 9 shall be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that mParticle shall be entitled to injunctive relief in the event Customer uses the mParticle Platform or mParticle SDK in violation of the limited license granted herein or uses the mParticle Platform or mParticle SDK in any way not expressly permitted by this Agreement.  All notices under this Agreement will be in writing and sent to the recipient’s address set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each Party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship.  Notwithstanding anything herein to the contrary but subject to compliance with Section 2.6 (“Consumer Privacy”), mParticle may (a) create demonstration and marketing materials and information which includes Customer Data solely in anonymized or aggregated format and disclose and otherwise make such materials and information available solely in connection with marketing and demonstrating the mParticle Platform; and (b) mention Customer and the relationship between mParticle and Customer in mParticle’s marketing collateral, website, and other promotional and marketing materials.   Each Party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party shall give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.  For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in New York, New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts.  Customer acknowledges that any unauthorized use of the mParticle Platform or mParticle SDK will cause irreparable harm and injury to mParticle for which there is no adequate remedy at law.  In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that mParticle shall be entitled to injunctive relief in the event Customer uses the mParticle Platform or mParticle SDK in violation of the limited license granted herein or uses the mParticle Platform or mParticle SDK in any way not expressly permitted by this Agreement.

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10. Modifications to Agreement

mParticle may modify the Terms and Conditions of this Agreement (including pricing and plans) from time to time, with notice given to Customer by email or through the mParticle Platform. Any modifications will become effective immediately, and if Customer disagrees with the modifications, Customer’s exclusive remedy is to cease using the mParticle Platform. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the mParticle Platform, and in any event continued use of the mParticle Platform after the modifications take effect constitutes Customer’s acceptance of the modifications.

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