Partner Program Agreement - Mixpanel

Partner Program Agreement

Last updated: January 26, 2021

THE TERMS OF THIS PARTNER PROGRAM AGREEMENT (“AGREEMENT”) GOVERN YOUR PARTICIPATION IN THE PARTNER PROGRAM OF MIXPANEL, INC. (“MIXPANEL”). BY ACCEPTING THESE TERMS OR BY PARTICIPATING IN THE PARTNER PROGRAM AS A PARTNER, YOU (“PARTNER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS (“EFFECTIVE DATE”).

1. Definitions

1.1 “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a Party. For the purposes of this definition, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity.

1.2 “Application Services” means Mixpanel’s suite of online, web-based, and mobile-based applications provided by Mixpanel through https://mixpanel.com or other designated websites or IP addresses for mobile applications communicated to Partner by Mixpanel.

1.3 “Beta Services” means a product, service or functionality provided by Mixpanel that may be made available to Partner to try at Partner’s option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.

1.4 “Customer” means all third-party persons, firms, businesses, or entities that are customers or potential customers of the Application Services or Professional Services.

1.5 “Documentation” means user guides, collateral or other documentation about the Application Services, Partner Program, or Mixpanel’s services that is made available to Partner or Customer.

1.6 “Marks” means trademarks, service marks, or logos.

1.7 “Partner Addendum” means a written agreement signed by both Parties incorporating the terms of the Agreement by reference and specifying additional terms in connection with the Partner Program.

1.8 “Partner Program” means the standard program and benefits described in Mixpanel’s policies published at https://mixpanel.com/partners for solutions partners or technology partners (the type of partnership as applicable to Partner by designation of Mixpanel), which program and benefits may be amended from time to time.

1.9 “Personal Information” means any data processed by Mixpanel pursuant to the Agreement, relating to an identified or identifiable natural person or household; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural or social identity.

1.10 “Professional Services” means professional services provided by Mixpanel to Partners or Customers in connection with the Application Services, including creation of Documentation, any training, or implementation services.

1.11 “Prohibited Information” means (a) information under regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards), including without limitation, financial account numbers, debit or credit card information, magnetic stripe data, or card verification values; (b) government issued personal identifiers, including without limitation, driver’s license numbers, passport numbers, or other state issued identification numbers; (c) bio-metric identifiers, including without limitation, genetic data, iris scans, thumb or finger prints, cardiac rhythm identifiers, facial modelling data, or health data; (d) personally identifiable information collected from children under the age of 13 or from online services directed toward children; (e) real time geo-location data which can track or identify an individual’s precise movements; (f) passwords, authentication/authorization credentials, business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications); (g) export-controlled information for which importer has not obtained all required export licenses or government approvals; or (h) other information the unauthorized disclosure of which could cause material, severe, or catastrophic harm or impact to any data subjects or third parties.

1.12 “Services” means the Application Services or the Professional Services.

2. Partner Program

2.1 Partner Program. The Agreement provides the terms for participation in the Partner Program. Any benefits are subject to the policies of the Partner Program provided by Mixpanel (which may be amended from time to time with prior notice) and Partner’s compliance with such policies and this Agreement. Benefits under the Partner Program are determined by Mixpanel and where there is any ambiguity in the eligibility criteria, obligations or benefits for Partner, Mixpanel’s interpretation shall control.

2.2 Use of the Application Services. Subject to this Agreement and during the Term, Mixpanel hereby grants Partner a limited, non-exclusive, non-transferable right to access and use the Application Services solely for the purpose of demonstrating or training Customers on the Application Services. Partner’s right to access and use the Application Services is limited to the extent Mixpanel makes such Application Services available to Partner (which Mixpanel may suspend or terminate at any time at its discretion). Partner acknowledges that use of the Application Services is not intended for any productive business purpose or processing of the production data of Partner or a Customer, including, but not limited to Prohibited Information or Personal Information.

2.3 Maintenance. Mixpanel does not guarantee the maintenance or continued function of, and Mixpanel reserves the right to change, discontinue, delete or deprecate, at any time and at Mixpanel’s sole discretion, any product feature, support service and any custom modifications to the Application Services that may be made available to or accessible by Partner.

2.4 Beta Services. From time to time, Mixpanel may make Beta Services available to Partner at no charge. Partner may choose to utilize such Beta Services in Partner’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not fully supported and may be subject to additional terms and fees that may be presented to Partner. Beta Services are provided on an “as-is” and “as available” basis without any warranty, support, maintenance, storage, service-level agreement or indemnity obligation of any kind and so, are not considered “Application Services” hereunder, even if displayed in the user interface; however, all restrictions herein, Mixpanel’s reservation of rights and Partner’s obligations concerning the Application Services shall apply equally to Partner’s use of Beta Services. Mixpanel may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Mixpanel will have no liability for any harm or damage arising out of or in connection with a Beta Service. Beta Services may be considered Confidential Information of Mixpanel, if so denoted or communicated by Mixpanel to Partner. Partner will not disclose (including, but not limited to, in a press release or public statement) any information about, involving or regarding Beta Services (including the existence of), except as agreed by Mixpanel in writing.

2.5 Restrictions. Partner shall not and shall not permit or authorize any third party to: (i) copy, rent, sell, lease, sublicense, distribute, assign, or otherwise transfer or encumber rights to the Application Services, or use the Application Services for the benefit of any third party, or make the Application Services available to anyone other than its employees (unless permitted in a Partner Addendum); (ii) use the Application Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or to process, send or store Prohibited Information, infringing or unlawful material, viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iii) create Internet “links” to the Application Services or “frame” or “mirror” any content provided in connection therewith; (iv) circumvent or disable any digital rights management, usage rules, or other security features of the Application Services, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Application Services or the data contained therein; (v) modify, copy, translate, enhance, decompile, disassemble, reverse engineer or create derivative works based on the Application Services, or any portion thereof; (vi) access or use the Application Services for the purpose of building a competitive product or service or copying its features or user interface; (vii) remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Application Services; or (viii) use the Application Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Application Services. Subject to the limited rights and restrictions set forth herein, Partner may allow its employees to access and use the Application Services, provided that Partner shall be responsible for its employees in compliance with Partner’s obligations under the terms of the Agreement.

3. Ownership

3.1 Proprietary Rights. As between the Parties, each Party retains all right, title and interest in and to its proprietary materials and all intellectual property rights therein. Except for the access and use rights expressly granted to Partner in this Agreement, Mixpanel and its licensors retain all right, title and interest in and to the Services, including all related rights protected by applicable intellectual property laws and international treaties. Mixpanel shall exclusively own any Professional Services provided by Mixpanel, and any and all work product or other materials related thereto (including without limitation modifications, derivative works and modifications thereto). Nothing contained in this Agreement shall be construed to transfer any rights in or to any of the foregoing other than as explicitly set forth in this Agreement.

3.2 Feedback. If Partner or any of its employee or representative authorised by Mixpanel provides Mixpanel any suggestions, recommendations, or other feedback relating to Mixpanel’s current or future products or services, including Beta Services (“Feedback”), Mixpanel shall have the right to use the Feedback in any manner, including, but not limited to future enhancements and modifications to the Application Services. Partner hereby grants to Mixpanel and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner and for any purpose, in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Partner or any third Party. In addition, Mixpanel shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Services.

3.3 Use of Marks. During the Term, Partner grants to Mixpanel a revocable, non-assignable, non-transferable, non-sublicensable license to display Partner Marks identifying it as a Partner or otherwise in connection with the Partner Program. During the Term, Mixpanel grants to Partner a revocable, non-assignable, non-transferable, non-sublicensable license to display Mixpanel Marks to identify itself as a Partner of the Partner Program and for additional marketing of Partner expressly permitted by Mixpanel. Each Party shall only display the other Party’s Marks in the form provided by the Party owning the Mark and subject to usage guidelines, if any, identified by such Party in writing. All of the benefit and goodwill associated with the use of the Marks will inure entirely to the Mark owner.

4. Term and Termination

4.1 Term. This Agreement is effective as of the Effective Date and, unless terminated earlier by either Party pursuant to this Agreement, will remain in effect for twelve (12) months thereafter (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive twelve (12) month periods (each a “Renewal Term”), unless either Party gives the other notice of non-renewal at least thirty (30) days prior to the end the Initial or Renewal Term. The Initial Term together with any and all Renewal Terms are referred to collectively as the “Term.” This Agreement shall automatically terminate upon: (a) Mixpanel’s written notice of the termination of the Partner Program; (b) upon thirty (30) days’ prior written notice to Partner by Mixpanel; or (c) upon material breach of the Agreement by a Party after 30 days’ prior written notice of the non-breaching Party if the material breach is not cured.

4.2 Effect of Termination. Upon termination of this Agreement, Partner shall cease to be a participant in the Partner Program and to use Mixpanel’s Services or intellectual property. Upon termination, Partner shall promptly deliver to Mixpanel all originals and copies, in whatever form or medium, of Mixpanel’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in Partner’s possession, power or control and Partner will delete all of the Mixpanel’s Confidential Information from any and all of the computer systems, retrieval systems and databases.

4.3 Survival. The following provisions, and all other provisions necessary to their interpretation or enforcement of this Agreement, will survive indefinitely after the termination of this Agreement and will remain in full force and effect: Section 3 (Ownership); Section 4.2 (Effect of Termination); Section 5 (Confidentiality); Section 6 (Partner Obligations); Section 8 (Indemnification); Section 9 (Limitation of Liability); and Section 10 (General).

5. Confidentiality

5.1 Confidential Information.Confidential Information” shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. The parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Notwithstanding the foregoing, the provisions of this Section will not apply to information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure by the disclosing Party; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that, to the extent permitted by law, the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order or (ii) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.

5.2 Use of Confidential Information. Each Party agrees (a) to use Confidential Information disclosed by the other Party only for the purposes described herein and (b) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement.

5.3 Remedies. Each Party acknowledges and agrees that, in the event of a breach or threatened breach by the recipient of any of the provisions of this Section, damages will not be an adequate remedy for the disclosing Party and, accordingly, the disclosing Party may be entitled, in addition to any other remedies available to it, to seek injunctive relief against such breach or threatened breach without posting bond.

6. Partner Obligations

6.1 Business Practices. Partner represents and warrants that it conducts its performance under this Agreement at all times in keeping with industry best professional standards of ethics and integrity, including, but not limited to compliance with any policies, codes of conduct, or procedures shared by Mixpanel to Partner. Partner shall not hold itself out as Partner until approved by Mixpanel, make any representations or warranties on behalf of Mixpanel or the Application Services that is inconsistent with the latest versions of the Documentation or hold itself out as a reseller or distributor of the Services (unless provided for in a Partner Addendum).

6.2 No Fees. Unless provided for in a Partner Addendum, Partner shall not be entitled to any referral, co-selling, or other revenue sharing fees, fees for Partner’s time or services, expense reimbursements, or fees for participation in the Partner Program. Each Party will be solely responsible for its expenses and costs under the Partner Program.

6.3 Laws and Regulations. Partner shall and shall ensure any person acting on Partner’s behalf comply with all applicable laws and regulations, including, but not limited to, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and all other domestic or international anti-bribery laws and regulations, and all U.S. export control and economic sanctions laws and regulations. Partner represents, warrants, and covenants that Partner, its Affiliates, owners, officers, directors, employees, and representatives (a) did not, and will not make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing or inducing an act of decision of an official of any government (including a decision not to act) and (b) is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person. Partner will conduct regular training sessions to ensure that its employees, third parties, and anyone working on behalf of Partner in the performance of its obligations under this Addendum are aware of and abide by all applicable laws and regulations.

6.4 Use of Third Parties. Partner will not use any third Party in performance of this Agreement except with Mixpanel’s prior written consent. Partner must require that any third parties used by Partner in the performance of this Agreement will also fully comply with all applicable laws and is fully responsible for those parties.

6.5 Non-Exclusivity; Non-Disparagement. Nothing in this Agreement will prevent Mixpanel, alone or with others, from entering into any partner, customer, referral, resale or other agreement with any other third party or from conducting its own business and sales with Customers. Neither Party will make any false, misleading, or disparaging statements (whether orally or in writing) regarding the other Party, its officers, directors, or managers, or its technology or services.

6.6 Non-Solicitation. During the Term of this Agreement and for a period of twelve (12) months thereafter, Partner will not directly or indirectly solicit any employee of Mixpanel, except a public job posting or other general solicitation is not directed specifically to any employee of Mixpanel shall be permissible.

7. Warranties and Disclaimer

7.1 Warranties. Each Party represents and warrants that (a) it has the legal power to enter into and perform its obligations under this Agreement and (b) neither this Agreement nor its performance of its obligations hereunder shall knowingly place it in breach of any other contract or obligation nor shall it knowingly make the other Party liable to any third Party claim of interference with contract or business expectancies.

7.2 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, MIXPANEL AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND REGARDING THE SERVICES OR THE PARTNER PROGRAM, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, USE OF SERVICES PROVIDED BY MIXPANEL, INCLUDING, BUT NOT LIMITED TO, THE SERVICES, IS AT PARTNER’S SOLE RISK AND ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MIXPANEL DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ITS SERVICES, AND PARTNER RELIES ON SUCH SERVICES AT PARTNER’S OWN RISK. MIXPANEL DOES NOT GUARANTEE THE ACCURACY, USABILITY, COMPLETENESS, OR USEFULNESS OF ANY CUSTOM REPORT, AND PARTNER USES CUSTOM REPORTING FEATURES AT PARTNER’S OWN RISK. ANY MATERIAL THAT PARTNER ACCESSES OR OBTAINS THROUGH MIXPANEL’S SERVICES OR THE PARTNER PROGRAM IS DONE AT PARTNER’S OWN DISCRETION AND RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PARTNER FROM MIXPANEL OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

8. Indemnification

8.1 Partner Indemnification. Partner shall defend, indemnify and hold Mixpanel harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Mixpanel by a third party based upon: (a) a representation made by Partner to such third Party other than those expressly approved by Mixpanel in writing; (b) a breach of Section 6.3 (Laws and Regulations) by Partner; (c) use of any products or services of Partner; or (d) gross negligence, wilful misconduct or fraud of Partner.

8.2 Mixpanel Indemnification. Mixpanel shall defend, indemnify and hold Partner harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Partner by a third party based upon the Application Services infringing such third party’s patent rights, copyrights, or trademarks, or misappropriates such third party’s trade secrets. Notwithstanding the foregoing, Mixpanel will have no liability for any Claim that arises in whole or in part from: (a) modifications to the Application Service made by Partner or any third party; (b) the combination, operation or use of the Application Services with software, hardware, data or technology not provided by Mixpanel (where the infringement would have been avoided in the absence of such combination); or (c) Partner’s use of the Application Services other than in accordance with this Agreement or violation of applicable law. The indemnification obligations set forth in this Section 8.2 are Mixpanel’s sole and exclusive obligations, and Partner’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.

9. Limitation of Liability

IN NO EVENT SHALL MIXPANEL (AND/OR THEIR LICENSORS OR SUPPLIERS) BE LIABLE UNDER THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), EVEN IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL EITHER MIXPANEL’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE GREATER OF $10,000 AND COMMISSIONS PAID OR PAYABLE TO PARTNER IN THE TWELEVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. General

10.1 Independent Contractor. In making and performing this Agreement, Partner and Mixpanel act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership (irrespective of use of the term “partner” in the Agreement), joint venture, or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of the other party. Any fees, expenses or other amounts paid by Partner to Mixpanel hereunder shall not be considered salary for pension or wage tax purposes and neither Mixpanel nor its personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Partner, unless otherwise required by law.

10.2 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity, other than the Parties, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

10.3 Notices. All notices shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing by nationally recognized overnight delivery service, or (iii), except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email. Notices to Mixpanel shall be addressed to the attention of its Legal Department at One Front Street, 28th Floor, San Francisco, CA 94111, U.S.A with an electronic copy to legal@mixpanel.com. Legal Notices to Partner shall be addressed to the contact email provided by Partner at the time of account creation.

10.4 Waiver. No consent or waiver by a Party to or of any breach or default by the other Party in its performance of its obligations under this Agreement will be effective unless in writing and signed by both parties or deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that other Party.

10.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.

10.6 Assignment. Partner may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Mixpanel (not to be unreasonably withheld or delayed). Mixpanel may assign this Agreement in its entirety, without the consent of the other party, to its successor in connection with a merger or acquisition (including by operation of law), corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Partner to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.7 Governing Law; Venue. Enforcement of any dispute relating to this Agreement will be governed by the laws of the State of California, excluding its conflict and choice of law principles and the United Nations Convention on the International Sale of Goods. The exclusive jurisdiction and venue for any claims arising out of or related to this Agreement is in the state and federal courts located in City and County of San Francisco, California, and Partner irrevocably agrees to submit to the jurisdiction of such courts.

10.8 Entire Agreement. Agreement sets forth the entire agreement and understanding between the parties with respect to its subject matter and supersedes and merges all prior and contemporaneous oral and written agreements, discussions and understandings between the parties with respect to its subject matter. In the event the parties have previously entered into a separate non-disclosure or confidentiality agreement, such agreement is terminated as of the Effective Date of this Agreement. In the event the parties enter into a separate non-disclosure or confidentiality agreement subsequent to the Effective Date, such separate agreement shall not modify, supplement or supersede the terms of this Agreement unless expressly set forth in such subsequent agreement. No terms or conditions set forth on any purchase order, pre-printed form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.