Legal

Terms of Use

USE OF THE APPLICATION SERVICES (AS DEFINED BELOW) PROVIDED BY MIXPANEL, INC. ("MIXPANEL") AND REFERENCED HEREIN IS GOVERNED BY THE TERMS OF THIS MASTER SERVICES AGREEMENT AND ANY ANCILLARY AGREEMENTS REFERENCED HEREIN OR ENTERED INTO BETWEEN THE PARTIES ("AGREEMENT"). BY ACCEPTING THESE TERMS OR BY USING MIXPANEL'S APPLICATION SERVICES IN ANY MANNER, YOU AND THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY INCLUDED IN THE SCOPE OF YOUR IMPLEMENTATION OF THE APPLICATION SERVICES (COLLECTIVELY, "CUSTOMER") AGREE THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE MIXPANEL'S APPLICATION SERVICES. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS OR USE THE APPLICATION SERVICES ("EFFECTIVE DATE").

1. USE OF THE APPLICATION SERVICES

1.1 Use of Application Services. Subject to the terms of this Agreement, Mixpanel grants to Customer a limited, non-exclusive, non-transferable, revocable right to access and use the Application Services solely for Customer's internal business purposes and not for resale or further distribution. Customer's right to access and use the Application Services shall be subject to Customer's compliance with the terms and conditions contained herein and limited to the Subscription Plan and the Subscription Term purchased by Customer.

1.2 Authorized Users. Customer may allow Authorized Users to access and use the Application Services; provided Customer shall be responsible for ensuring its Authorized Users use the Application Services in compliance with Customer's obligations under this Agreement.

1.3 Subscription Plans.

1.3.1 Subscription Plans. The Application Services are provided through existing and legacy Subscription Plans. For all Subscription Plans: a "Data Point" or "Event" shall mean a JSON object comprised of an event (string) and a dictionary of properties (object) that is stored by the Application Services; a "User Profile" shall mean a JSON object comprised of an identifier or identifying string intended to indicate a unique user and a dictionary of properties (object) that is stored by the Application Services; and a "Monthly Tracked User" or "MTU" shall mean a unique identifier sent with at least one Data Point to the Application Services in a calendar month.

1.3.2 Free Services. Mixpanel offers free Subscription Plans at no cost that have limited features, functionality, and volume tiers, for specified Subscription Terms. Mixpanel reserves the right to modify the free Subscription Plans at any time in its sole discretion or even discontinue, suspend or terminate them entirely, without prior notice to Customer.

1.3.3 Legacy Services. From time to time Mixpanel may, at its sole discretion, cease to offer certain Subscription Plans ("Legacy Subscription Plan"). If Customer is on a paid Legacy Subscription Plan, Mixpanel shall use commercially reasonable efforts to provide Customer with prior written notice of the deprecation of such Legacy Subscription Plan and related support until the end of Customer's then current Subscription Term.

1.4 A La Carte Fees. Usage of the Application Services exceeding the volume tier of the Subscription Plan purchased by Customer will result in Customer being charged additional fees ("A La Carte Fees"), at 150% of the unit price applicable to Customer's selected volume tier (unless otherwise provided in an Order Form), and Customer shall be obligated to pay any A La Carte Fees the following month. For Subscription Plans on MTUs, if the number of Data Points/Events or updates to User Profiles sent by Customer to the Application Services in a calendar month is greater than the number equal to the quantity of MTUs sent to the Application Services in such calendar month multiplied by 1,000, each and every additional 1,000 Data Points/Events or updates to User Profiles shall be considered an additional MTU for the purposes of calculating A La Carte Fees.

1.5 Pricing. Mixpanel reserves the right, in its sole discretion, to modify the pricing of its services and Subscription Plans, add new services or pricing plans for additional fees and charges, or amend fees and charges for existing services, at any time without prior notice to Customer. Notwithstanding the foregoing, the fees set forth on an Order Form shall remain fixed for the duration of the Subscription Term set forth therein and any new pricing, additional fees and/or charges shall become effective at the start of a new Subscription Term, unless otherwise agreed to in writing by the parties.

2. ACCESS TO THE APPLICATION SERVICES

2.1 Restrictions. Customer shall not and shall not permit or authorize any third party,including, but not limited to its Authorized Users, 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 Authorized Users; (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) 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; (iv) modify, copy, translate, enhance, decompile, disassemble, reverse engineer or create derivative works based on the Application Services, or any portion thereof; (v) access or use the Application Services for the purpose of building a competitive product or service or copying its features or user interface; (vi) remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Application Services; or (vii) use the Application Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Application Services.

2.2 Maintenance. You acknowledge that the Application Services are an on-line, subscription-based product and that, in order to provide an improved customer experience, Mixpanel may make changes to the Application Services and update the applicable Documentation accordingly, over time. Provided that the overall functionality and security of the Application Services does not materially decrease, Mixpanel reserves the right to change, discontinue, delete or deprecate, any product feature, support service and any custom report template that may be made available to Customer.

2.3 Excess Burden. Mixpanel reserves the right to temporarily restrict, suspend, or terminate access to the Application Services at any time, if in Mixpanel's sole determination, Customer is using the Application Services in a manner that violates applicable laws or causes material harm or risk to Mixpanel or to any other party, including, but not limited to creating an Excess Burden on Mixpanel's systems.

2.4 Beta Services. From time to time, Mixpanel may make Beta Services available to Customer at no charge. Customer may choose to utilize such Beta Services in Customer'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 Customer. 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 are not considered "Application Services" hereunder, even if displayed in the user interface; provided, however, that all restrictions herein, Mixpanel's reservation of rights and Customer's obligations concerning the Application Services shall apply equally to Customer'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 Customer. Customer 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 Acceptable Use Policy. Customer will not use the Application Services to: (i) upload, post, email, or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm Mixpanel or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent Customer's affiliation with a person or entity; (iv) upload, post, email, or otherwise transmit any content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other right of any party; (vi) upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (vii) interfere with or disrupt the Application Services or servers or networks connected to the Application Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Application Services; or (viii) intentionally or unintentionally violate any applicable local, state, national or international law or regulation.

3. PAYMENT TERMS

3.1 Billing Terms. Subscription Plans are billed in advance of the Subscription Term and automatically renew for an equivalent renewal term, at the end of the Subscription Term, unless otherwise stated in an Order Form. Customer may opt not to renew for an equivalent renewal term by writing to Mixpanel at https://help.mixpanel.com/hc/en-us/requests/new or contacting their Mixpanel representative. Fees paid hereunder, including A La Carte Fees, are non-cancellable during a Term, are non-refundable and shall be billed in U.S. Dollars. Except as otherwise set forth in an Order Form, fees due hereunder will be billed to Customer's credit card. Customer authorizes: (i) the card issuer to pay all such amounts and (ii) Mixpanel (or its billing agent) to charge the credit card account until the Application Services are terminated as set forth herein; provided, however, that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer understands and agrees that it must provide current, complete and accurate billing and payment information. Additionally, Customer agrees to pay all costs of collection, including attorney's fees and costs, on any outstanding balance. In certain instances there may be banking or financial institution transaction fees or related charges, which Customer understands and agrees it shall be responsible to pay.

3.2 Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). Customer is responsible for payment of all Taxes associated with its purchases hereunder (excluding taxes based on Mixpanel's net income or property), and any related penalties and interest. Customer will make all required payments to Mixpanel free and clear of, and without reduction for, any withholding taxes. Customer will, upon Mixpanel's request, provide Mixpanel with official receipts issued by appropriate taxing authorities, or such other evidence as Mixpanel may reasonably request, to establish that such Taxes have been paid.

3.3 Credits. Mixpanel may, at its sole discretion, choose to offer credits for the Application Services, including discount codes or promotional campaigns. Credits are non-transferable and do not have any monetary or cash value. Any credits can only be used to offset fees per the terms and conditions expressly identified by Mixpanel and, unless otherwise stated by Mixpanel, shall no longer be redeemable ninety (90) days from the date of issuance.

3.4 Failure of Payment. If Customer fails to pay fees within five (5) business days of Mixpanel's notice to Customer of a delinquent payment, in addition to other available remedies, Mixpanel reserves the right to suspend or terminate access to the Application Services and delete the Customer Content.

4. PRIVACY AND INFORMATION SECURITY

4.1 Data Privacy Addenda. To the extent Customer Content includes Personal Information sent by Customer through the Application Services, the terms of the Data Processing Addendum ("DPA") found at https://mixpanel.com/legal/dpa/ shall apply and be deemed incorporated into this Agreement. To the extent the processing of Personal Information pursuant to this Agreement is subject to the California Consumer Privacy Act, as amended by the California Privacy Rights Act, the terms of Mixpanel's California Data Privacy Addendum found at https://mixpanel.com/legal/cdpa/ shall apply to such processing and be incorporated into this Agreement ("CDPA" and together with the DPA, the "Privacy Addendums").

4.2 Hosting and Processing. Customer Content is hosted and stored by Mixpanel in the United States or, for Customers configuring the Application Services to use Mixpanel's data residency program, in Europe. In providing aspects of the Application Services, Mixpanel's service providers may process Customer Content, including, without limitation, any associated Personal Information, within the United States, the European Economic Area, and in other countries and territories as identified in the DPA.

4.3 Security Practices. Mixpanel will implement reasonable and appropriate measures designed to secure Personal Information against accidental or unlawful loss, access, or disclosure, as well as to comply with applicable information security standards. Such measures include adoption of a data security program that incorporates industry-standard information security safeguards to maintain the confidentiality, integrity, and availability of the Personal Information provided through Customer's use of the Application Services as described further in Schedule 2 of the DPA.

5. OWNERSHIP AND PROPRIETARY RIGHTS

5.1 Ownership. As between Mixpanel and Customer: (i) all intellectual property rights in and to the Application Services, Documentation and Mixpanel Materials are and remain the sole and exclusive property of Mixpanel and its licensors; and (ii) all Customer Content and Customer Confidential Information are the sole and exclusive property of Customer. This Agreement is a license agreement and not an agreement for sale or assignment.

5.2 License Grant. Subject to the terms and conditions of this Agreement, Customer hereby grants to Mixpanel a worldwide, limited-term license to process the Customer Content solely to the extent necessary to provide the Application Services and enable Mixpanel to exercise its rights and perform its obligations under this Agreement, including, but not limited to delivering Application Services, monitoring and improving the Application Services, providing supporting documentation and support, and developing and improving features of the Application Services that are not identifiable to Customer or other customers.

5.3 Suggestions. Customer may from time to time provide suggestions, comments or other feedback to Mixpanel with respect to the Application Services ("Feedback"). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Mixpanel notwithstanding anything else. Customer shall, and hereby does, grant to Mixpanel a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

5.4 Third Party Content. The Application Services and Documentation may display, contain links to, or contain third party content, websites, or services ("Third Party Content"). Mixpanel does not endorse or assume any responsibility for any such Third Party Content. If Customer accesses Third Party Content through the Application Services, Customer does so at Customer's own risk and agrees that Mixpanel is not responsible or liable to anyone for such Third Party Content.

6. PROFESSIONAL SERVICES

6.1 General. From time to time, subject to the terms of this Agreement, Mixpanel shall provide Professional Services to Customer on the terms and conditions specified in an Order Form and/or the Documentation.

6.2 Assistance. Mixpanel and Customer agree to cooperate in good faith to achieve satisfactory completion of the Professional Services in a professional manner. Customer agrees to provide, at its own expense, timely and adequate assistance and other resources reasonably requested by Mixpanel to enable and ensure the performance of the Professional Services (collectively, "Assistance"). Neither Mixpanel nor its Professional Services Personnel (as defined in Section 6.3) will be liable for any deficiency in the performance of Professional Services to the extent resulting from any acts or omissions of Customer, including, but not limited to, Customer's failure to provide Assistance as required hereunder.

6.3 Professional Services Personnel. In performing the Professional Services, Mixpanel will provide such resources, and utilize employees, service providers or subcontractors ("Professional Services Personnel") as it deems necessary to perform the Professional Services or any portion thereof. Mixpanel may replace Professional Services Personnel in its normal course of business or subcontract the Professional Services, provided that Mixpanel shall remain responsible and liable for the performance of Professional Services by the Professional Services Personnel it appoints.

6.4 Warranties. Mixpanel hereby represents and warrants that the Professional Services shall be performed in a timely, professional and workmanlike manner with the level of skill and care consistent with generally-accepted industry standards and practices for similar services. Professional Services Personnel shall have the requisite skills needed to carry out such work. Customer's sole and exclusive remedy and Mixpanel's sole and exclusive liability for any breach of this warranty will be reperformance of the Professional Services.

6.5 Mixpanel Ownership. The Parties hereby agree that the specified Professional Services primarily involve advising Customer on the implementation of the Application Services and integration of Customer's data with and into the Application Services. Excluding Customer Confidential Information and Customer Content, Mixpanel retains all right, title, and interest in and to the Professional Services, including all related intellectual property rights inherent therein. Mixpanel will own all rights, title and interest in any Mixpanel Materials, including all intellectual property rights therein. In the event that any part of the Mixpanel Materials is held to be owned by the Customer due to the performance of Professional Services by Mixpanel, Customer hereby assigns to Mixpanel all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Mixpanel a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such part of the Mixpanel Materials, including but not limited to an assignable license to incorporate the Mixpanel Materials into the Application Services.

7. SUPPORT

7.1 Support Services. Mixpanel will make available to Customer limited email and online support services at no additional charge. For purposes of clarity, Professional Services are not considered "Support" and support may not include implementation, customization, configuration or other similar services.

7.2 Help Desk. In addition to, and not in lieu of the support services provided by Mixpanel pursuant to Section 7.1, Mixpanel offers an enhanced level of paid support services ("Help Desk"). If Customer wishes to purchase the Help Desk, it must do so pursuant to an Order Form and in accordance with the Documentation.

8. REPRESENTATIONS AND WARRANTIES

8.1 Mutual Warranties. Each party represents and warrants that: (i) it has full power and authority to enter into this Agreement; (ii) the individual accepting this Agreement on its behalf has the authority to do so; (iii) it will comply with all applicable laws in connection with this Agreement; and (iv) the performance of its obligations under this Agreement will not conflict with any other agreement to which it is a party.

8.2 Additional Customer Warranties. Customer further represents and warrants that: (i) it has all necessary rights, consents, and authority to make the Customer Content available to Mixpanel pursuant to this Agreement and for Mixpanel to use the Customer Content as contemplated herein; (ii) the Customer Content does not, and Customer's use of the Application Services does not, violate any law or third party intellectual property, privacy, publicity or other right; and (iii) Customer is not providing to Mixpanel through or as part of the Customer Content any Prohibited Information.

9. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8, THE APPLICATION SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WITHOUT LIMITING THE FOREGOING, MIXPANEL MAKES NO WARRANTY THAT (A) THE APPLICATION SERVICES OR DOCUMENTATION WILL MEET CUSTOMER'S REQUIREMENTS, (B) THE APPLICATION SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION SERVICES WILL BE ACCURATE OR RELIABLE.

10. INDEMNIFICATION

10.1 Indemnification by Mixpanel. Mixpanel will defend, indemnify and hold harmless Customer from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with a claim by a third party that Customer's use of the Application Services, in accordance with this Agreement, infringes or misappropriates such third party's United States patent, copyright, or trade secret rights; provided that, Customer: (i) promptly notifies Mixpanel in writing of the claim; (ii) grants Mixpanel sole control of the defense and settlement of the claim; and (iii) reasonably cooperates with Mixpanel in connection with such claim. Mixpanel will have no liability under this Section 10.1 if the alleged infringement claim arises from: (a) modification of the Application Services by anyone other than Mixpanel; (b) use of the Application Services in combination with equipment, devices, software or data not supplied or approved in writing by Mixpanel; (c) failure to implement any updates or upgrades to the Application Services made available by Mixpanel; or (d) Customer Content or any information provided by Customer to Mixpanel. If the Application Services become, or in Mixpanel's opinion are likely to become, the subject of an infringement claim, Mixpanel may, at its option and expense: (x) procure for Customer the right to continue using the Application Services; (y) replace or modify the Application Services to be non-infringing; or (z) terminate this Agreement and refund to Customer any prepaid, unused fees applicable to the remaining portion of the applicable Subscription Term following the effective date of termination. This Section 10.1 states Mixpanel's entire liability and Customer's sole and exclusive remedy for infringement claims and actions.

10.2 Indemnification by Customer. Customer will defend, indemnify and hold harmless Mixpanel from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) any claim by a third party arising from the Customer Content or the combination of Customer Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by the Customer Content, or by the use, development, design, production, advertising or marketing of the Customer Content; or (ii) any claim related to Customer's breach of its representations, warranties and covenants under this Agreement; provided that, Mixpanel: (a) promptly notifies Customer in writing of the claim; (b) grants Customer sole control of the defense and settlement of the claim; and (c) reasonably cooperates with Customer in connection with such claim.

11. LIMITATIONS OF LIABILITY

11.1 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MIXPANEL, OR ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS, BE LIABLE UNDER THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT PRODUCTS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MIXPANEL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL MIXPANEL'S, OR ITS LICENSORS', SERVICE PROVIDERS' OR SUPPLIERS', AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER TO MIXPANEL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.

11.2 Exceptions. The limitations set forth in Section 11.1 will not apply to: (i) Customer's breach of Section 2 (Access to the Application Services); (ii) Customer's infringement or misappropriation of Mixpanel's intellectual property rights; or (iii) either party's indemnification obligations under Section 10 (Indemnification) of this Agreement. In no event shall Mixpanel's liability or any of its licensors', service providers' or suppliers' liability exceed the limitation cap set forth in Section 11.1, even if a remedy fails of its essential purpose.

12. TERM AND TERMINATION

12.1 Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue unless and until: (i) terminated as set forth herein; or (ii) the end of the Subscription Term of all outstanding Order Forms that are entered into or have not yet expired pursuant to the terms thereof, whichever is later.

12.2 Termination of Free Services. Mixpanel may suspend, restrict, or terminate Customer's free Subscription Plan, without cause and with or without notice, at any time in its sole discretion.

12.3 Termination for Cause. Either party may terminate this Agreement or any applicable Order Form immediately upon notice to the other party if the other party materially breaches this Agreement or any Order Form, including any payment obligation, and (if capable of being cured) such breach has not been cured within thirty (30) days of receipt by such breaching party of written notice thereof.

12.4 Termination.

12.4.1 Either party may terminate this Agreement or any applicable Order Form in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period. If the Agreement terminates due to Mixpanel's uncured material breach, Customer shall be entitled to receive a refund of any prepaid, unused fees applicable to the remaining portion of the applicable Subscription Term following the effective date of termination.

12.4.2 Either party may, at its option, terminate this Agreement and any applicable Order Forms immediately upon written notice to the other party, in the event (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; or (iii) a receiver is appointed or there is an assignment for the benefit of such other party's creditors.

12.5 Effect of Termination. Upon any termination or expiration of this Agreement: (i) all license and other rights granted to Customer under this Agreement will immediately cease; (ii) Mixpanel may immediately cease providing the Application Services; (iii) Customer will immediately cease all use of the Application Services; and (iv) except as described below, each party will, at the other party's option, either return or destroy all information and materials of the other party in its possession or control. Upon termination, Mixpanel will make Customer Content available to Customer for a period of thirty (30) days after termination or expiration. After thirty (30) days, Mixpanel shall have no obligation to maintain or provide any Customer Content and may delete or otherwise dispose of all Customer Content in its systems or otherwise in its possession or control. Notwithstanding anything to the contrary, upon written request, Mixpanel will continue to hold Customer Content that is the subject of litigation, government investigation, or other formal or legal proceeding until the resolution of such proceeding, or as may otherwise be required by law. The rights and obligations of the parties set forth in Sections 3.1 (Billing Terms), 3.2 (Taxes), 5 (Ownership and Proprietary Rights), 10 (Indemnification), 11 (Limitations of Liability), 12 (Term and Termination), 13 (Confidentiality), and 14 (General Provisions) of this Agreement will survive expiration or termination of this Agreement.

13. CONFIDENTIALITY

13.1 Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Mixpanel's Confidential Information includes the Application Services (including, but not limited to the Documentation), Professional Services and information related to Mixpanel's technology, systems, business operations, customers, pricing, or marketing. Customer's Confidential Information includes Customer Content and Customer Confidential Information. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

13.2 Protection of Confidential Information. The Receiving Party shall: (i) protect the confidentiality of the Disclosing Party's Confidential Information using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care; (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) not disclose Confidential Information of the Disclosing Party to any third party except to the Receiving Party's employees, contractors, agents, and professional advisors who need to know it and who have been informed of the confidential nature of such information and are bound by confidentiality obligations at least as protective as those contained in this Section 13. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority, provided that the Receiving Party gives the Disclosing Party prompt notice of such requirement prior to such disclosure and reasonably cooperates in any efforts by the Disclosing Party to seek a protective order or otherwise prevent such disclosure.

14. GENERAL PROVISIONS

14.1 Compliance with Laws. In its performance under this Agreement, each party shall comply with all applicable laws. Customer shall be responsible for its own compliance, and the compliance of its Authorized Users, with local and international privacy and data protection laws applicable to any Personal Information processed through the Application Services, including, but not limited to, obtaining all necessary consents required for the processing and transfer of any Personal Information. Customer represents and warrants that it has provided and will provide all notices and has obtained and will obtain all consents necessary to provide and for Mixpanel to use Customer Content in accordance with this Agreement.

14.2 Export. Customer shall not access or use the Application Services in a U.S. embargoed country or region (currently Cuba, Iran, North Korea, Syria, or the Crimea, Donetsk People's Republic, or Luhansk People's Republic regions of Ukraine) or in violation of any U.S. export law or regulation. Customer shall not submit to the Application Services any information controlled under the U.S. International Traffic in Arms Regulations.

14.3 Amendment and Modification. Mixpanel reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice to www.mixpanel.com or the Application Services, or by sending Customer notice via email. Customer shall be responsible for reviewing and becoming familiar with any such modifications. Modifications will be effective upon notice. Use of the Application Services following notice of a modification to this Agreement shall constitute acceptance of the Agreement as modified.

14.4 Entire Agreement; Order of Precedence. This Agreement, together with any Order Forms and other documents incorporated herein by reference, is the entire agreement between the parties on this subject and merges and supersedes all related prior and contemporaneous agreements and understandings. In the case of any conflict between the terms of this Agreement and an Order Form or an ancillary agreement, the conflicting terms shall control in the following order: (i) the Order Form (subject to the limitation that the Order Form may add to, but may not contradict or supersede, the core terms and conditions of this Agreement); (ii) any ancillary agreement referenced herein or entered into by the parties; and (iii) this Agreement.

14.5 Force Majeure. Neither party will be liable for any default or delay in the performance of its obligations under this Agreement (except for Customer's payment obligations) if such default or delay is caused, directly or indirectly, by fires, floods, earthquakes, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics or pandemics, quarantines or other health crises, failures of the internet or related equipment or technology, labor strikes or lockouts, or any other similar cause beyond the reasonable control of such party.

14.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. All notices to be provided by Mixpanel to Customer under this Agreement may be delivered to the address or email address Customer provides during the sign-up process for the Application Services, or to such other address or email address as Customer may later specify in writing. All notices to Mixpanel should be sent to Mixpanel, Inc., Attention: Legal Department, One Front Street, 28th Floor, San Francisco, CA 94111 or legal@mixpanel.com.

14.7 Assignment. Neither party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other party, not to be unreasonably withheld; provided, however, that either party may assign this Agreement in its entirety, without the consent of the other party, to its successor or to an affiliate as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its business or assets. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on and inure to the benefit of the parties and their respective successors and assigns.

14.8 No Agency. Both parties agree that no agency, partnership, joint venture, or employment relationship is created as a result of this Agreement. Neither party has any authority of any kind to bind the other party.

14.9 Governing Law; Venue. This Agreement shall be governed by the laws of the State of California, without regard to principles of conflicts of law. The exclusive venue for actions related to the subject matter of this Agreement shall be the state and federal courts located in San Francisco County, California, and both parties submit to the personal jurisdiction of such courts.

14.10 Severability; Waiver. If any provision of this Agreement is found unenforceable, the remainder of this Agreement will continue in full effect and an enforceable term will be substituted reflecting the parties' intent as closely as possible. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

14.11 No Third Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

14.12 Defined Terms. The following terms when capitalized shall have the meaning attributed to them as defined below:

14.13 "Personal Information" means any Customer Content processed by Mixpanel pursuant to this 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.

14.14 "Professional Services" means training, support, consulting, or implementation services provided in accordance with Section 6 of this Agreement, as indicated on an Order Form or the Documentation.

14.15 "Prohibited Information" means (i) information under regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards), including, but without limitation, financial account numbers, debit or credit card information, magnetic stripe data, or card verification values; (ii) government issued personal identifiers, including, but without limitation, driver's license numbers, passport numbers, or other state issued identification numbers; (iii) bio-metric identifiers as described in state, federal or other applicable law, including without limitation, genetic data, iris scans, thumb or finger prints, cardiac rhythm identifiers, facial modeling data, or health data; (iv) personally identifiable information collected from children under the age of 13 or from online services directed toward children; (v) real time geo-location data which can track or identify an individual's precise movements; (vi) passwords, authentication/authorization credentials, private encryption keys, business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications); (vii) export-controlled information for which Customer has not obtained all required export licenses or government approvals; (viii) Protected Health Information ("PHI") subject to United States HIPAA regulations or related state health or medical privacy laws, except as permitted by an executed HIPAA Business Associate Agreement; (ix) any data constituting "sensitive personal information," "sensitive data," "special categories of data" or similar terms defined under applicable data protection laws; or (x) other information the unauthorized disclosure of which could cause material, severe, or catastrophic harm or impact to any data subjects or third parties.

14.16 "Subscription Plan" means a specified pricing plan and term length with associated features, functionality and volume tiers for the Application Services purchased by Customer.

14.17 "Subscription Term" means the period of time identified when completing an online purchase or on an Order Form during which time Customer is authorized to access and use the Application Services.

14.18 "Supplemental Terms" means product-specific terms that apply only to certain features of the Application Services found at https://mixpanel.com/legal/supplemental-terms/ .