Legal

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. Subject to the limits of the applicable Subscription Plan, Customer may allow its Authorized Users to access and use the Application Services; provided Customer shall be responsible for the acts and omissions of its Authorized Users 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 cease to offer certain Subscription Plans (“Legacy Subscription Plan”). If Customer is on a Legacy Subscription Plan, Mixpanel shall use commercially reasonable efforts to support such Legacy Subscription Plan until the end of Customer’s then current Subscription Term. Notwithstanding the foregoing, Mixpanel reserves the right to discontinue supporting Legacy Subscription Plans at any time without prior notice.

1.4 A La Carte Fees. In the event Customer’s use of the Application Services exceeds the volume tier of the Subscription Plan purchased by Customer, Mixpanel will charge overage fees (“A La Carte Fees”) consistent with the Documentation, at (i) 150% of the unit price applicable to Customer’s selected volume tier for our enterprise level Subscription Plans, or (ii) 120% of the unit price applicable to Customer’s selected volume tier for all other Subscription Plans, and Customer shall be obligated to pay any A La Carte Fees the following month. Notwithstanding (i) and (ii), a different unit price shall be applicable to Customer’s selected volume tier if such unit price is agreed between Customer and Mixpanel during the Subscription Plan purchasing process. 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, and except with respect to the A La Carte fees described in Section 1.4, unless otherwise provided in an Order Form, the fees set forth on an Order Form shall remain fixed for the duration of the Subscription Term set forth therein.

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. 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 report template that may be made available to or accessible by Customer, including through the Application Services. Custom reports could include, but are not limited to, custom JQL queries, ReportKit Applications, or other reports customized for Customer’s use.

2.3 Excess Burden. Mixpanel reserves the right to 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 the terms of this Agreement, fails to make payment to Mixpanel, or creates 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 notice of delinquent payments, in addition to other available remedies, Mixpanel reserves the right to suspend or terminate access to the Application Services and delete the Customer Content (as defined below).

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 Tracking. Subject to and in accordance with the Documentation, the Application Services are intended to allow Customer to learn how an End User interacts with and uses Customer’s mobile applications, mobile websites, web-connected devices or web properties. The Application Services give Customer the ability to track data, media, and other information provided by the Customer to the Application Services, excluding Prohibited Information (collectively, “Customer Content”). Customer identifies and selects, and is solely responsible for determining, through its implementation of Mixpanel’s integration library, what data to track and send to the Application Services.

4.4 Compliance with Laws. Customer agrees to comply with all applicable privacy, data protection, and consumer protection laws and regulations in connection with Customer’s use of the Application Services, including without limitation, requirements of proper notice and consent to process and send Personal Information to Mixpanel, as contemplated under this Agreement and the DPA. Mixpanel agrees to provide the Application Services in accordance with its obligations under the Data Protection Legislation and CCPA as defined and set forth in the Privacy Addendums, provided Customer does not obstruct Mixpanel’s ability to comply with these obligations.

4.5 Customer Content Rights. Mixpanel does not sell, lease, rent or otherwise share for consideration Customer Content. Mixpanel will share Customer Content only under the following circumstances:

(i) With select service providers who perform work on Mixpanel’s behalf to provide the Application Services;

(ii) To the extent needed to comply with laws or to respond to lawful requests and legal processes (provided that Mixpanel will endeavor to notify Customer if Mixpanel has received a lawful request for Customer Content);

(iii) To protect the rights and property of Mixpanel, its agents, other Mixpanel customers, and others, including, but not limited to, enforcing Mixpanel’s agreements, policies, and this Agreement;

(iv) In an emergency, including to protect Mixpanel’s information security or the personal safety of any person;

(v) In connection with activities related to the sale or transfer of all or a part of Mixpanel’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or

(vi) As directed by Customer, including through its use of the Application Services.

Mixpanel stores, uses, transfers, processes, and accesses Customer Content for the limited purposes of: (i) performing Mixpanel’s obligations under this Agreement and any applicable Order Form; (ii) responding to service issues and requests for support; (iii) complying with Customer’s instructions; and (iv) maintaining and improving the Application Services. Mixpanel may also use Customer Content in a de-identified and aggregated form (“Aggregated Data”) for Mixpanel’s own business purposes, including use, duplication, modification, and creation of derivative works regarding usage and performance of Aggregated Data. Aggregated Data does not directly or indirectly identify Customer, End Users, or individual data subjects. Mixpanel shall own all right, title and interest to the Aggregated Data and any derivative works thereof.

4.6 Customer Content Deletion. Mixpanel provides Customer with access to Customer Content and the ability to delete Customer Content through the Application Services. Upon termination of Mixpanel’s relationship with Customer, Mixpanel has no obligation to maintain or provide any Customer Content and will delete Customer Content unless prohibited by law.

4.7 Security. Mixpanel will maintain appropriate physical, technical and organizational controls designed to safeguard Customer Content within its cloud storage from unauthorized access, use or disclosure. These controls will include measures designed to store Customer Content on servers located in a physically secured location; and the use of firewalls, access controls and similar security technologies designed to protect Customer Content from unauthorized disclosure. Mixpanel takes no responsibility and assumes no liability for any Customer Content other than its express security obligations in this section and Customer understands and agrees that Mixpanel will not be responsible or liable for any breach or loss of Customer Content resulting from Customer’s security configuration or administration of the Application Services.

4.8 Customer Security Obligations. Customer agrees that, without limiting Mixpanel’s obligations under Section 4.7, Customer is solely responsible for its use of the Application Services, including (i) maintaining appropriate physical, technical and organizational measures designed to maintain a level of security for the Customer Content appropriate to the risk; (ii) securing Customer’s systems and devices used to access the Application Services; and (iii) maintaining its own backups of Customer Content. Without limitation of the foregoing, certain parts of the Application Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password and agrees to notify Mixpanel if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer undertakes such activities. Customer agrees to immediately notify Mixpanel of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the Application Services that is known to Customer.

4.9 Privacy Statement. Mixpanel’s tracking and use of information collected about Customer on Mixpanel Sites are governed by the Mixpanel Privacy Statement, available
at https://mixpanel.com/legal/privacy-policy/. The Mixpanel Privacy Statement does not cover information Mixpanel processes on Customer’s behalf in providing the Application Services and it shall be Customer’s obligation to provide Customer’s own privacy statement or notice to its End Users as well as to provide all required disclosures to and obtain all required consents from Customer’s employees and/or agents. In addition, Mixpanel may collect registration and other information about Customer as Mixpanel’s customer through Mixpanel Sites.

5. THIRD-PARTY SERVICES

The Application Services or Documentation may display, contain links to, or connect with third-party products, services, and websites (collectively, “Third-Party Services”). Any statements, services, offers, or other information that constitutes part of the Third-Party Services made available by third parties on the Application Services or Mixpanel Sites, or which are accessible through the Application Services are those of the respective authors or producers and not of Mixpanel or its stockholders, directors, officers, employees, agents, or representatives. Mixpanel does not control Third-Party Services and does not guarantee the accuracy, integrity or quality of such Third-Party Services. Third-Party Services are governed solely by the terms and conditions of those Third-Party Services and Mixpanel is not responsible for the performance of and does not endorse any Third-Party Services or any information or materials advertised in any Third-Party Services. If Customer installs, enables or uses Third-Party Services with the Application Services that requires the transfer of Customer Content for the Third-Party Services to interoperate with the Application Services, Customer grants Mixpanel permission to allow the provider of the Third-Party Services to access or receive Customer Content for the interoperation of that Third-Party Service with the Application Services. Mixpanel is not responsible or liable, directly or indirectly, for any transferring, transmitting, damage, disclosure, modification, deletion or loss caused to Customer or Customer Content by Customer’s use of or reliance on any Third-Party Services and Mixpanel does not guarantee the interoperability of such Third-Party Services with the Application Services. It is Customer’s responsibility to evaluate the information, opinion, advice, or other services available on and through the Application Services. Mixpanel does not provide the equipment required to access the Application Services. Customer is responsible for all fees charged by third parties related to Customer’s access and use of the Application Services (e.g., charges by Internet service providers).

6. PROFESSIONAL SERVICES

6.1 Scope. If Customer purchases professional services (“Professional Services”), then the terms and conditions of this Section 6 shall apply. The Professional Services primarily involve supporting Customer with the implementation of Mixpanel’s software development kit into Customer’s software and assisting Customer with the integration of Customer Content with and into the Application Services.

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 Change Order. In the event that Customer seeks to change the scope or timing of the Professional Services, Customer agrees to discuss such proposed changes with Mixpanel. If Mixpanel agrees to modify the Professional Services, which may entitle Mixpanel to additional fees, such changes and additional fees must be captured in a change order mutually agreed and executed by the parties (“Change Order”). Customer understands that Mixpanel shall not be obligated to perform any differing or additional Professional Services unless the parties have executed a Change Order.

6.5 Expenses. Customer agrees to reimburse Mixpanel for any Customer approved expenses for travel, lodging, communications, shipping charges and out-of- pocket expenses, including change fees for travel and accommodations, incurred by Mixpanel in its performance of the Professional Services (“Expenses”). Mixpanel will provide reasonable documentation for all Expenses as requested by Customer. Customer shall reimburse Mixpanel for Expenses in the month after they are incurred, in accordance with the payment terms in the Order Form.

6.6 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.

6.7 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.

6.8 Customer License. Subject to the terms and conditions of this Agreement, Mixpanel shall grant to Customer a worldwide, non-exclusive, non-transferable, non-sub-licensable license to use the Mixpanel Materials for Customer’s internal business purposes during the Subscription Term.

7. PROPRIETARY RIGHTS AND CUSTOMER IDENTIFICATION

7.1 Mixpanel Trademark. “Mixpanel,” the Mixpanel logo, and any other product or service name or slogan displayed on the Application Services are trademarks of Mixpanel, Inc. or its Affiliates, and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Mixpanel or the applicable trademark holder. Customer shall not use any metatags or any other “hidden text” utilizing “Mixpanel” or any other name, trademark or product or service name of Mixpanel without prior written permission. In addition, the look and feel of the Application Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Mixpanel and may not be copied, imitated or used, in whole or in part, without prior written permission. All other trademarks, registered trademarks, product names and company names or logos that appear in the Application Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Mixpanel.

7.2 Customer Identification. Customer agrees, and hereby provides Mixpanel with the necessary rights and licenses, to identify Customer as a user of the Application Services and use Customer’s name and logo on the Mixpanel Sites and marketing materials. Customer agrees to act as a customer reference for the Application Services and Customer agrees to respond reasonably to all such reference contacts.

7.3 Reservation of Rights. Subject to the rights expressly granted to Customer in this Agreement, as between Mixpanel and Customer, Mixpanel reserves all right, title and interest in and to the Application Services and Mixpanel Materials, including all related intellectual property rights, and all other products, works, software and technology created, used, or provided by Mixpanel in connection with this Agreement, including any modifications, enhancements and improvements thereto.

7.4 Ownership and Use of Customer Content. Subject to the rights expressly granted to Mixpanel in this Agreement, as between Mixpanel and Customer, Customer reserves all right, title and interest in and to the Customer Content, including all related intellectual property rights. Customer hereby grants to Mixpanel a non-exclusive, non-transferable right (except as expressly granted in this Agreement) and license to store, access, use, and transfer the Customer Content as described in this Agreement and the DPA.

8. CONFIDENTIAL INFORMATION; FEEDBACK

8.1 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. Confidential Information shall not include, or shall cease to include, as applicable, information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no act or omission of the Receiving Party; (iii) is rightfully communicated to the Receiving Party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the Receiving Party; or (vi) is approved for release or disclosure by the Disclosing Party without restriction.

8.2 Use of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information. Receiving Party shall: (i) use Confidential Information of Disclosing Party only for the purposes described herein; (ii) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party, (except as needed to carry out the purposes of this Agreement) in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall Receiving Party exercise less than reasonable care in protecting such Confidential Information; (iii) restrict access to the Confidential Information disclosed by the other Party to those of its employees, contractors, personnel, agents, and/or consultants, if any, who have a need to have access in order to carry out the purposes of this Agreement and who have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein; and (iv) to the extent practicable, upon request of the Disclosing Party return or destroy all Confidential Information of the Disclosing Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding any other provision of this Agreement, Receiving Party may disclose Confidential Information to the limited extent required 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 Receiving Party shall provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance, at Disclosing Party’s request and expense, if the Disclosing Party wishes to contest the disclosure. Due to the unique nature of the Parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a Party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching Party. Therefore, upon any such breach, the Party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.

8.3 Feedback. If Customer or its Authorized Users provide Mixpanel any suggestions, recommendations, comments, corrections, enhancements, feature and/or functionality requests 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. Customer agrees that such Feedback is given voluntarily, and hereby grants to Mixpanel and its assigns a perpetual, worldwide, transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, disclose, create derivative works from, distribute, commercialize 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 Customer or any third party. For the avoidance of doubt, Feedback does not include Customer Confidential Information or Customer Content. 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 Application Services and Professional Services.

9. WARRANTIES; DISCLAIMER OF WARRANTIES

9.1 Application Services. Subject to Section 9.4, Mixpanel warrants that the features and functionality of the Application Services, as made available to Customer by Mixpanel, will perform the material functions described in the Documentation. Mixpanel’s sole liability and Customer’s exclusive right and remedy for a breach of the foregoing warranty is for Mixpanel to correct or re-perform such material nonconforming aspects of the Application Services. If Mixpanel fails to correct or re-perform such material nonconforming aspects of the Application Services within a reasonable time of receipt of written notice from Customer detailing the breach, Customer’s sole and exclusive remedy shall be to terminate the Agreement and have Mixpanel refund to Customer the pro-rata unused portion of any pre-paid fees applicable to the remaining portion of the applicable Subscription Term following the effective date of termination. The foregoing warranty will not apply to, and Mixpanel is not obligated to correct, non-conformities related to: (i) unauthorized modifications to the Application Services; (ii) use of the Application Services outside of the scope of this Agreement or as described in the Documentation; or (iii) Third-Party Services, software or equipment outside of Mixpanel’s control.

9.1.1 Authority. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that it has the legal power and authority to enter into this Agreement; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

9.2 Customer Content. Customer represents and warrants that it owns or has obtained all necessary rights, title and interest, provided all appropriate notices and disclosures, and obtained all necessary permissions and consents, to use the Application Services to track End Users and transfer Customer Content to Mixpanel and its third-party subcontractors for the purpose of processing such Customer Content in accordance with this Agreement.

9.3 Export Compliance. Customer warrants it shall comply with all U.S. export control and economic sanctions laws and regulations as they relate to access to and use of the Application Services. Customer shall not access or use the Application Services if Customer is located in any jurisdiction in which the provision of the Application Services is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Application Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer 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; (ii) Customer is not a national of, or a company registered in, any Prohibited Jurisdiction; (iii) Customer shall not permit its Authorized Users or any agents to access or use the Application Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; (iv) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer, its Authorized Users and its agents are located; and (v) Customer shall not access and use the Application Services for the benefit or on behalf of any person listed in any applicable government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list.

9.4 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, USE OF SERVICES PROVIDED BY MIXPANEL, INCLUDING, BUT NOT LIMITED TO, THE APPLICATION SERVICES, ANY PROFESSIONAL SERVICES AND CUSTOMER SUPPORT SERVICES IS AT CUSTOMER’S SOLE RISK. SUCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MIXPANEL AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, 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. MIXPANEL DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ITS SERVICES, AND CUSTOMER RELIES ON SUCH SERVICES AT CUSTOMER’S OWN RISK. MIXPANEL DOES NOT GUARANTEE THE ACCURACY, USABILITY, COMPLETENESS, OR USEFULNESS OF ANY CUSTOM REPORT, AND CUSTOMER USES CUSTOM REPORTING FEATURES AT CUSTOMER’S OWN RISK. ANY MATERIAL THAT CUSTOMER ACCESSES OR OBTAINS THROUGH MIXPANEL’S SERVICES, INCLUDING CUSTOMER CONTENT, IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH MIXPANEL’S SERVICES. FURTHER, MIXPANEL DOES NOT WARRANT THAT CUSTOMER’S USE OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR ALWAYS AVAILABLE AND MIXPANEL WILL NOT BE LIABLE FOR LOSS, INACCURACY OR CORRUPTION OF DATA OR DELAYS, SERVICE FAILURES OR INTERRUPTIONS INHERENT IN THE USE OF THE INTERNET OR COMMUNICATION SYSTEMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM MIXPANEL OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

10. LIMITATION OF LIABILITY

10.1 EXCLUSION OF REMEDIES. EXCEPT WITH RESPECT TO A BREACH OF CUSTOMER’S OBLIGATIONS UNDER SECTIONS 2.1 OR 4.4, NEITHER CUSTOMER NOR MIXPANEL SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

10.2 EXCEPT WITH RESPECT TO (I) CUSTOMER’S PAYMENT OBLIGATIONS, (II) A BREACH OF CUSTOMER’S OBLIGATIONS UNDER SECTIONS 2.1 OR 4.4, OR (III) LIABILITY OF EACH PARTY TO THE EXTENT IT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, THE AGGREGATE AND CUMULATIVE LIABILITY OF EACH PARTY WITH RESPECT TO ANY AND ALL CLAIMS AND DAMAGES ARISING OUT OF OR RELATED TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY, SHALL NOT EXCEED THE GREATER OF: (A) THE TOTAL APPLICATION SERVICES FEES PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY (THE “FEES PAID”) OR (B) ONE THOUSAND DOLLARS ($1,000). NOTWITHSTANDING THE FOREGOING, IF CUSTOMER’S SUBSCRIPTION TERM VALUE EXCEEDS SIXTY THOUSAND DOLLARS ($60,000), THEN MIXPANEL’S LIABILITY WITH RESPECT TO: (X) ITS INDEMNITY OBLIGATIONS UNDER SECTION 11.1; (Y) A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8.2; AND (Z) A BREACH OF THE TECHNICAL AND ORGANIZATIONAL MEASURES DESCRIBED IN THE DATA PRIVACY ADDENDUM THAT RESULT IN THE UNAUTHORIZED USE OR LOSS OF PERSONAL INFORMATION INCLUDED IN CUSTOMER CONTENT, SHALL NOT EXCEED TWO (2) TIMES THE FEES PAID. FOR THE AVOIDANCE OF DOUBT, IF AT ANY POINT A CUSTOMER’S SUBSCRIPTION TERM VALUE FALLS BELOW SIXTY THOUSAND DOLLARS ($60,000), THE ENHANCED LIABILITY CAP IN THE PREVIOUS SENTENCE SHALL NOT APPLY.

10.3 Essential Basis of the Agreement. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 10 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. The Parties each acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth in this Section 10 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions this Agreement would be substantially different.

11. INDEMNITY

11.1 Indemnification by Mixpanel. Subject to Section 10, Mixpanel will defend Customer at Mixpanel’s expense from any and all claims, demands, suits or proceedings (“Claims”) brought against Customer by a third party alleging that the use of the Application Services as permitted hereunder infringes such third party’s patent, copyrights, or trademarks, or misappropriates such third party’s trade secrets. Further, Mixpanel shall indemnify and hold Customer harmless against all costs (including reasonable attorneys’ fees) finally awarded against Customer by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Mixpanel, in connection with such Claims. If a Claim is received or is reasonably likely to be received, Mixpanel may, at Mixpanel’s option and sole discretion and expense, either (i) replace or modify the Application Services, or any part thereof, as appropriate, (ii) obtain a license for Customer to continue using the Application Services, (iii) replace the Application Services with a substantially equivalent service; or (iv) terminate the applicable Order Form and refund to Customer a pro-rated amount of any prepaid, unused fees applicable to the remaining portion of the then current Subscription Term following the effective date of termination. 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 Customer 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); (c) Customer’s use of the Application Services other than in accordance with this Agreement or in violation of applicable law; or (d) Third Party Software, Customer software or Customer Content. The indemnification obligations set forth in this Section 11.1 are Mixpanel’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.

11.2 Indemnification by Customer. Subject to Section 10, Customer will defend Mixpanel at Customer’s expense from any and all Claims brought against Mixpanel by a third party arising out of (i) allegations that Customer’s use of the Application Services beyond the scope described in this Agreement, violates the rights of such third party; (ii) Customer Content infringes or otherwise violates a third party’s property, privacy, or other rights; (iii) Customer’s breach of this Agreement; or (iii) Customer fails to comply with applicable laws, rules or regulations in performance of this Agreement. Further, Customer shall indemnify and hold Mixpanel harmless against all costs (including reasonable attorneys’ fees) finally awarded against Mixpanel by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer, in connection with such Claims.

11.3 Indemnity Requirements. The party seeking indemnity under this Section 11 (“Indemnitee“) must give the other party (“Indemnitor“) the following: (i) prompt written notice of any claim for which the Indemnitee intends to seek indemnity, (ii) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor’s sole expense, and (iii) sole control over the defense and settlement of the claim, provided that Indemnitor may not settle any Claim unless it unconditionally releases Indemnitee of all liability.

12. MISCELLANEOUS

12.1 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 or Customer’s use of the Application Services is in the state and federal courts located in City and County of San Francisco, California, and Customer irrevocably agrees to submit to the jurisdiction of such courts.

12.2 Assignment. Customer 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). Notwithstanding any provision in this Agreement, either party 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 Customer 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.

12.3 Entire Agreement. Subject to an Order Form, this 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, preprinted 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.

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.

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 Survival. The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer, Feedback, Indemnity, and Limitation of Liability. This Agreement contains the entire understanding of the parties on the subject matter hereof.

12.6 Government Contractors. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Application Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202–1 through 227.7202–4, as applicable, the Application Services are licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.

12.7 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.

12.8 Headings. In this Agreement headings are inserted for convenience only and shall not affect the meaning of the text and references to the singular include the plural and vice versa.

12.9 Independent Contractors. In making and performing this Agreement, Customer 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, joint venture, partnership 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 Customer 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 Customer, unless otherwise required by law.

12.10 Modifications. Mixpanel reserves the right to modify the terms and conditions of this Agreement from time to time, by posting the modified terms on a Mixpanel Site. Any updated version of these terms shall become effective as of the posting date and will supersede all prior versions. Customer’s continued use of the Application Services after the updated version has been posted, will constitute Customer’s acceptance of such updated terms and no separate notice will be required.

13. CONTACTING US

All notices to be provided by Mixpanel to Customer under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Customer on any Order Form or (ii) by electronic mail to the electronic mail address provided for Customer’s account owner. If Customer needs to give notice to Mixpanel, Customer must do so in writing by Courier or U.S. mail to One Front Street, 28th Floor, San Francisco, CA 94111, Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery if by electronic mail, or, if otherwise delivered, then upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above. If Customer has any questions or concerns about the Application Services or this Agreement, Customer may contact us by email at legal@mixpanel.com.

14. DEFINITIONS

14.1 “Affiliate” means an entity that directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “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.

14.2 “Application Services” shall mean the online, web-based, and mobile-based applications provided by Mixpanel through a Mixpanel Site, ordered by Customer’s selection and acceptance of a Subscription Plan by means of (i) the online purchasing process on a website operated by Mixpanel or its Affiliates or (ii) an executed Order Form.

14.3 “Authorized User” means any individual provided with access to the Application Services by Customer.

14.4 “Beta Services” means a product, service or functionality provided by Mixpanel that may be made available to Customer to try at Customer’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.

14.5 “Customer’s Subscription Term Value” means the fees paid or payable to Mixpanel for the Application Services during a twelve (12) month Subscription Term.

14.6 “Documentation” means the user guides and other user documentation that accompanies or is made generally available for the Application Services by Mixpanel.

14.7 “End User” means a user of Customer’s mobile applications, mobile websites or web properties with which Customer has integrated the Application Services.

14.8 “Excess Burden” means the Application Services are being used to engage in denial of service attacks, spamming, or any illegal activity, or/ use of the Application Services is causing immediate, material and ongoing harm to Mixpanel or Mixpanel’s other customers.

14.9 “Mixpanel Materials” means any materials that Mixpanel provides to Customer as part of, or in the course of providing services in connection with the Application Services.

14.10 “Mixpanel Site” shall mean https://mixpanel.com or other designated websites or IP addresses for mobile applications communicated to Customer by Mixpanel.

14.11 “Order Form” shall mean an ordering document for the Application Services, including without limitation statements of work, signed by both parties and incorporating the terms of this Agreement by reference.

14.12 “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.

14.13 “Prohibited Information” shall mean (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, 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, 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; or (viii) health information subject to United States HIPAA regulations, 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.

14.14 “Subscription Plan” shall mean a specified pricing plan and term length with associated features, functionality and volume tiers for the Application Services purchased by Customer.

14.15 “Subscription Term” means the period of time identified on an Order Form or renewal document during which time Customer is authorized to access and use the Application Services.