You are viewing Braze MSA (June 2, 2019 - August 3, 2020)

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER'S USE OF THE BRAZE SERVICES. BY USING THE BRAZE SERVICES, CUSTOMER AGREES TO COMPLY WITH THESE TERMS OF USE.

Last Updated: June 3, 2019

1. DEFINITIONS

“Affiliate”shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Braze AUP” shall mean Braze’s Acceptable Use Policy available at: www.braze.com/aup.

“Braze Services” or “Services” shall mean the specific proprietary and generally available software-as-a-service product of Braze, specified in Customer’s Order Form, including any related code developed and provided by Braze to Customer for use in connection with such proprietary product, which may include SDK(s) or other similar code developed and provided by Braze. Braze Services exclude any Beta Services.

“Beta Services” shall mean the services (i) provided by Braze that are not generally available to customers, and (ii) that are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import.

“Business Unit” or “BU” shall mean, with respect to a single Customer, each of its Affiliates, businesses, divisions or brands that uses the Services hereunder where such use requires a separate instance, implementation, onboarding, and, if applicable, Currents connector and Premium Deliverability Services.

“Contacts” shall mean the number of End Users who have been or will be Messaged by Customer in any 12-month period commencing on the Start Date set forth on the applicable Order Form.

“Customer Application” shall mean Customer’s mobile applications or websites, as made available to its End Users.

“Customer Data” shall mean all electronic data or information submitted by or on behalf of Customer to, or collected from the Customer Application by, the Braze Services.

“Data Points” shall refer to a billable unit of use of the Braze Services, measured by a session start, session end, custom event or purchase recorded, as well as any attribute set on an End User profile. Data and events automatically collected by the Braze Services including, for example, push tokens, device information, and all campaign engagement tracking events, such as email opens and push notification clicks, are not counted as Data Points. For clarity, the setting of an End User’s profile information at one point in time shall count as a single Data Point.

“Documentation” shall mean the online documentation for the Braze Services, accessible via http://www.braze.com/docs, including the Braze Innovation Statement, as updated from time to time.

“End User” shall mean any end user of a Customer Application.

“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Message” shall mean any communication with End Users made by or on behalf of Customer directly or indirectly through the Braze Services.

“Monthly Active Users” or “MAUs” shall mean the number of End Users who have recorded a session in a Customer Application (excluding the number of End Users who have recorded unique website sessions in the event Customer has purchased MUVs on the applicable Order Form) in the previous thirty (30) days, calculated nightly with a rolling 30-day window as set forth on an Order Form.

“Monthly Unique Visitors” or “MUVs” shall mean the number of End Users who have recorded a unique website session in the previous thirty (30) days, calculated nightly with a rolling 30-day window, as set forth on an Order Form.

“Order Form” shall mean the ordering document for Customer’s purchases of Services, directly or indirectly from Braze that are executed hereunder from time to time, including any schedules or addenda thereto. An Order Form will set forth Customer’s product and service entitlements, such as Business Units, Contacts, Data Points, Monthly Active Users, or Monthly Unique Visitors, as applicable.

“Restricted Information” shall mean: (i) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended “HIPAA”), or similar information under other comparable laws or regulations; or (iii) credit or debit card numbers, or any related security codes or passwords, bank account numbers, or similar information.

“Start Date” shall mean the date on which Braze shall make the Braze Services available to Customer as set forth in an applicable Order Form.

“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.

“Third-Party Providers” shall mean a third-party provider chosen by Customer whose service or functionality interoperates with the Braze Services, at Customer’s sole discretion, in connection with Customer’s use of the Braze Services.

“User” shall mean an individual who is authorized by Customer to use the Braze Services. Users may include, for example, employees of Customer or its Affiliates, consultants, contractors and agents of Customer, and third parties with whom Customer transacts business.

2. BRAZE SERVICES

2.1 Provision of Braze Services. Braze shall make the Braze Services available to Customer pursuant to this Agreement and all Order Forms during a Subscription Term. Customer’s purchase of the Braze Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments made by Braze regarding future functionality or features.

2.2 Customer Affiliates. Customer Affiliates may purchase and use subscriptions to the Braze Services subject to the terms of this Agreement by executing Order Forms hereunder. This Agreement shall apply to such Customer Affiliates, and such Affiliates shall be deemed the “Customer” as contemplated herein. Customer Affiliates may also use the Services purchased by Customer without signing an Order Form if Customer makes certain employees of such Affiliate Users hereunder.

2.3 Braze Responsibilities. Braze shall: (a) ensure that the Braze Services perform in material compliance with the Documentation; (b) use commercially reasonable efforts to make the Braze Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which Braze shall make commercially reasonable efforts to give at least twenty-four (24) hours’ notice and which Braze shall schedule to the extent reasonably practicable from 10:00 PM until 7:00 AM, (EST) for Customers on Braze US clusters, and from 10:00 PM to 7:00 AM (GMT) for Customer on Braze EU cluster); or (ii) any unavailability caused by circumstances beyond Braze’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Braze employees), internet service provider, Third-Party Providers, or hosting facility failures or delays involving hardware, software or power systems not within Braze’s possession or reasonable control, and denial of service attacks; and (c) provide the Braze Services in accordance with applicable laws and governmental regulations when used according to this Agreement.

2.4 Customer Responsibilities. Customer is responsible for all actions taken by Customer or its Users in Customer’s account(s) and for Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy and legality of all Customer Data; (b) ensure that any user IDs, passwords, and other access credentials for the Braze Services are kept strictly confidential and not shared with any unauthorized person; (c) promptly notify Braze of any breach of security or unauthorized use of its account; (d) use commercially reasonable attempts to comply with requests made by Braze to update various features or functionalities within the Braze Services to optimize performance of the Braze Services to customers generally; (e) use the Braze Services in compliance with this Agreement, applicable Order Form(s), the Braze AUP and all applicable local, state, federal and foreign laws; and (f) provide notice and obtain any legally required consent for the use of tracking technologies used by the Services in creating End User profiles. Braze may, in its reasonable discretion, refuse to distribute Messages where the content of the Message, or the delivery of such Message to the recipient is, in Braze’s reasonable opinion, unlawful. Notwithstanding the foregoing, Braze has no obligation to review message content, or recipient addresses.

2.5 Use Guidelines. Customer shall use the Braze Services solely for its and its Affiliates’ business purposes as contemplated by this Agreement and shall not: (a) license, sell, resell, lease, transfer, distribute, or otherwise commercially exploit or make the Braze Services available to any third party; (b) send via or store within the Braze Services unlawful, offensive or tortious material; (c) use the Services to imitate or impersonate another person; (d) create false accounts for the purposes of sending unsolicited messages (spam); (e) send messages to individuals who have asked not to receive future messages from Customer (opted out); (f) send via, upload to, or store within the Braze Services any Malicious Code; (g) interfere with or disrupt the integrity or performance of the Braze Services or the data contained therein; (h) attempt to gain unauthorized access to the Braze Services or its related systems or networks; (i) use the Services to establish an individual’s eligibility for credit, employment or insurance; and (j) submit to the Braze Services or use the Braze Services to collect, store or process Restricted Information.

2.6 Protection of Customer Data. Braze will maintain administrative, physical and technical safeguards designed to protect the confidentiality and integrity of Customer Data. Braze will only access, use, process, modify, delete or disclose Customer Data (a) to provide the Services in accordance with this Agreement, (b) to provide support services and prevent or address service or technical problems, (c) as compelled by law in accordance with the Confidentiality section below or as required under applicable law, (d) to send to Users communications (i) about the Services, such as notice of scheduled maintenance, and (ii) of educational or informational nature to optimize their use of the Services, or (e) as expressly permitted in writing by Customer. To the extent that Braze processes any Personal Data (as defined in the DPA) contained in Customer Data, on Customer’s behalf, in the provision of the Services, the terms of the data processing addendum at https://www.braze.com/dpa/ (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.

2.7 Protection of the Services. Any use of the Braze Services by Customer that, in Braze’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Braze Services, or otherwise harms Braze, other customers or third parties, may result in immediate suspension of the Braze Services, however Braze will use commercially reasonable efforts under the circumstances to notify Customer in advance of such suspension and provide Customer with an opportunity to correct its usage prior to any such suspension. Braze will have no liability for any such suspension made in good faith. Unless this Agreement has been terminated, Braze will restore Customer’s access to the Braze Services once it verifies that Customer has resolved the condition requiring suspension.

3. FEES & PAYMENT

3.1 Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Braze Services subscription(s) purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) fees paid are non-refundable, except pursuant to Section 9.3 (Termination for Cause); and (iv) the subscription entitlement(s) purchased cannot be decreased during the relevant Subscription Term.

3.2 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced electronically (i) in advance, and (ii) monthly in arrears for excess usage, if applicable, and in both cases, in accordance with the applicable Order Form. Customer is responsible for maintaining complete and accurate billing and contact information within the Braze Services.

3.3 Overdue Payments. Braze may impose late fees as contemplated in each Order Form. If Customer’s account is 30 days or more overdue, Braze may, in addition to any of its other rights or remedies, upon written notice, suspend Customer’s access to the Braze Services until such amounts are paid in full. If such failure to pay has not been cured within 60 days of the due date, then upon written notice, Braze may terminate this Agreement and any or all outstanding Order Forms in accordance with the Termination for Cause section below.

3.4 Payment Disputes. Braze shall not exercise its rights under the “Overdue Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

3.5 Taxes. Unless otherwise stated, Braze’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use, sales or withholding taxes collected by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Braze’s net income or property. If Braze has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Braze with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. PROPRIETARY RIGHTS

4.1 Reservation of Rights. As between Braze and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Subject to the limited rights expressly granted hereunder, Braze reserves all rights, title and interest in and to the Braze Services and Customer retains all rights to the Customer Application(s), including all related intellectual property rights therein and to any improvements, enhancements or updates thereto. Braze may use Customer’s name verbally and Customer’s name and logo in writing to identify Customer as a customer of Braze. No rights are granted to either party hereunder other than as expressly set forth herein.

4.2 Intellectual Property Restrictions. Customer shall not (a) modify, copy or create derivative works based on the Braze Services; (b) reverse engineer the Braze Services; (c) alter, remove or suppress in any manner any copyright, trademark or other notices displayed by the Services; or (d) access the Braze Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Braze Services.

4.3 Feedback. If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback relating to the Braze Services to Braze (collectively, “Feedback”), Customer acknowledges and agrees that Braze may incorporate into the Braze Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any Customer Confidential Information contained in the Feedback.

5. CONFIDENTIALITY

5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party, or any of its Affiliates ( “Disclosing Party”), disclosed to the other party, or any of its Affiliates, ( “Receiving Party”) that is marked or designated as “Confidential” and/or “Proprietary”, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, all information and data relating to the provision of the Services, a party’s business and marketing plans, technology and technical information, product designs, and business processes. The terms and conditions of this Agreement are the Confidential Information of both parties, the pricing and other terms reflected in all Order Forms hereunder are the Confidential Information of Braze, and the Customer Data is the Confidential Information of Customer. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or any third party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

5.2 Confidentiality. The Receiving Party shall use 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) (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents (“Representatives”) who need such access for purposes consistent with this Agreement and who are subject to written confidentiality obligations with the Receiving Party containing protections no less stringent than those contained herein. Receiving Party shall be liable for any breach of this Section 5 by its Representatives. Other than as otherwise provided herein, neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Representatives without the other party’s prior written consent.

5.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

5.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) or fails to limit access to any Confidential Information of the Disclosing Party in breach of the confidentiality obligations set forth herein, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

5.5 Survival. The obligation of Confidentiality set forth in this Section 5 shall survive termination or expiration of this Agreement.

6. WARRANTIES & DISCLAIMERS

6.1 Braze Warranties. Braze represents and warrants that the functionality and overall security of the Braze Services will not be materially decreased during a Subscription Term. In the event of a breach of this Section 6.1, Customer’s exclusive remedy shall be as provided in the “Termination for Cause” section below.

6.2 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRAZE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR STATEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY BRAZE. BRAZE MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY SOFTWARE USED BY CUSTOMER IN CONNECTION WITH THE BRAZE SERVICES. BRAZE WILL NOT BE LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM OR ON BEHALF OF CUSTOMER IN BREACH OF THIS AGREEMENT.

7. MUTUAL INDEMNIFICATION

7.1 Indemnification by Braze. Subject to Section 8 below, Braze shall defend, indemnify and hold Customer harmless from any finally awarded damages, attorneys’ fees and judgments or settlements (“Damages”) arising from any claims, demands, suits or proceedings made or brought by a third party ( “Claims”) against Customer alleging (a) that Customer’s use of the Braze Services within the scope of this Agreement infringes the intellectual property rights of such third party; (b) a breach by Braze of its confidentiality obligations under Section 5 hereof; or (c) gross negligence or willful misconduct by Braze. If Braze receives information about an infringement Claim related to the Braze Services, Braze shall in its discretion and at no cost to Customer (i) modify the Braze Services so that they no longer infringe, without breaching Braze’s warranties under “Braze Warranties” above, (ii) obtain a license for Customer’s continued use of the Braze Services in accordance with this Agreement, or if (i) and (ii) are not reasonably practicable, then (iii) terminate Customer’s subscriptions for the Braze Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. Braze shall have no obligation to indemnify or defend Customer to the extent any Claim arises from Customer’s use of any Third-Party Provider’s services, or Customer’s use of the Braze Services in breach of this Agreement.

7.2 Indemnification by Customer. Subject to Section 8 below, Customer shall defend, indemnify and hold Braze harmless from any Damages arising from any Claims against Braze alleging (a) violation of applicable law arising from Customer’s use of the Braze Services in breach of this Agreement; (b) that Customer Data infringes the intellectual property rights of a third party; (c) a breach by Customer of its confidentiality obligations under Section 5 hereof; or (d) gross negligence or willful misconduct by Customer, and will indemnify Braze from any damage or judgments finally awarded against Braze incurred in connection with a Claim.

7.3 Procedure.The party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; provided, that failure to notify shall not relieve a party of its indemnification obligations unless the indemnifying party has been materially prejudiced thereby; (b) give the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle a Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim.

7.4 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

8. LIMITATION OF LIABILITY

8.1 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.

8.2 Exclusion of Indirect Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9. TERM & TERMINATION

9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have terminated or expired pursuant to the terms hereof and subject to Section 9.3 below.

9.2 Term of Subscriptions. Subscriptions to the Braze Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. Braze reserves the right to increase the fees on renewal by giving Customer at least sixty (60) days’ notice of such price increase; provided, however, that any such price increase shall not exceed 7% above the price that was in effect for the same products and services in the immediately preceding term. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

9.3 Continued Use. In the absence of automatic renewal or a signed renewal Order Form, upon expiration of the applicable Order Form, Braze will cease providing the applicable Services to Customer. In the event that the parties are negotiating renewal in good faith, Braze may, for a limited period of time, allow Customer to continue to use the Services hereunder beyond the expiration of such Order Form, and Customer agrees: (i) to pay for such use of the Services in an amount equal to the fees in effect immediately prior to such expiration (entitlements and fees prorated for such period) plus a 10% fee, and (ii) that Braze will cease providing the Services at the end of such period if Customer has not signed a new Order Form.

9.4 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Braze shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Braze prior to the effective date of termination. Upon any termination for cause by Braze, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term.

9.5 Customer Data Deletion. Braze shall enable Customer to export its Customer Data at any time during the term of this Agreement. In order to provide Customer with accurate analytical data and optimal performance of the Braze Services, Customer instructs Braze to remove the End User profiles from its production instance of End Users who are Inactive or Dormant as set forth and defined in the Documentation. Following the termination or expiration of this Agreement, Braze shall terminate provision of the Braze Services to Customer and shall delete or securely overwrite Customer Data, in accordance with this Agreement, applicable laws and the Documentation.

9.6 Surviving Provisions. Section 1 and Sections 3 through 10 shall survive any termination or expiration of this Agreement.

10. GENERAL PROVISIONS

10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

10.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

10.3 Beta Services. From time to time, Braze may invite Customer to try Beta Services. Customer may accept or decline any such trial in its sole discretion. Beta Services are for evaluation purposes and not for production use, are not considered “Braze Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Braze may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Braze shall have no liability for any harm or damage arising out of or in connection with a Beta Service.

10.4 Export Control and Sanctions Compliance. The Braze Services and derivatives thereof may be subject to export control and sanctions laws of the United States and other applicable government authorities. Customer will comply with and ensure that its Users are in compliance with such laws, including without limitation, the U.S. Export Administration Regulations and U.S. sanctions (the “Export Control and Sanctions Laws”). Customer will not, directly or indirectly, export, re-export, transship, transfer, divert or otherwise dispose of any Braze products or related technology, or use or allow use of the Services: (i) to or by any individual, entity, or country prohibited by the Export Control and Sanctions Laws, including, without limitation, the prohibition against exports (A) into, or to a national or resident of, any country subject to U.S. sanctions or similar export restrictions (currently, Cuba, Iran, Syria, North Korea and the region of Crimea), or (B) to or by anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or other export control lists; or (ii) for any purpose prohibited by the Export Control and Sanctions Laws, including, without limitation, nuclear, chemical or biological weapons proliferation or development of missile technology. It is Customer’s sole responsibility to ensure that it and its Users comply with the Export Control and Sanctions Laws with regard to the use of Braze Services. Any use of the Services by Customer or Users that, in Braze’s reasonable judgment, is unlawful may result in immediate suspension of the Services. Braze will have no liability for any such suspension made in good faith.

10.5 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restrictions, it will use reasonable efforts to promptly notify Braze’s Legal Department at [email protected].

10.6 Notices. All notices under this Agreement shall be sent in writing via mail or email. Notices of termination or of an indemnifiable claim ( “Legal Notices”) shall be identified as Legal Notices. Notices to Braze shall be addressed to the attention of its General Counsel at [email protected]. Legal Notices to Customer shall be addressed to the attention of its legal department. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

10.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.8 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

10.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.10 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules. The state and federal courts located in the State of New York, District of Manhattan, New York City, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

10.11 Entire Agreement. This Agreement is the entire agreement between the parties regarding Customer’s use of the Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, and (3) the body of this Agreement. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term or condition of this Agreement.

10.12 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.

You are viewing Braze MSA (December 7, 2018 - June 2, 2019)

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER'S USE OF THE BRAZE SERVICES. BY USING THE BRAZE SERVICES, CUSTOMER AGREES TO COMPLY WITH THESE TERMS OF USE.

Last Updated: December 7, 2018

1. DEFINITIONS

“Affiliate” shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Braze AUP” shall mean Braze’s Acceptable Use Policy available at: www.braze.com/aup.

"Braze Services" or “Services” shall mean the specific proprietary and generally available software-as-a-service product of Braze, specified in Customer’s Order Form, including any related code developed and provided by Braze to Customer for use in connection with the such proprietary product, which may include SDK(s) or other similar code developed and provided by Braze. Braze Services exclude any Beta Services.

“Beta Services” shall mean the services (i) provided by Braze that are not generally available to customers, and (ii) that are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import.

“Business Unit” or “BU” shall mean, with respect to a single Customer, each of its Affiliates, businesses, divisions or brands that uses the Services hereunder where such use requires a separate instance, implementation, onboarding, and, if applicable, Currents connector and Premium Deliverability Services.

“Contacts” shall mean the number of End Users who have been or will be Messaged by Customer in any 12-month period commencing on the Start Date set forth on the applicable Order Form.

“Customer Application” shall mean Customer’s mobile applications or websites, as made available to its End Users.

“Customer Data” shall mean all electronic data or information submitted by or on behalf of Customer to, or collected from the Customer Application by, the Braze Services.

“Data Points” shall refer to a billable unit of use of the Braze Services, measured by a session start, session end, custom event or purchase recorded, as well as any attribute set on an End User profile. Data and events automatically collected by the Braze Services including, for example, push tokens, device information, and all campaign engagement tracking events, such as email opens and push notification clicks, are not counted as Data Points. For clarity, the setting of an End User’s profile information at one point in time shall count as a single Data Point.

“Documentation” shall mean the online documentation for the Braze Services, accessible via http://www.braze.com/docs, including the Braze Innovation Statement, as updated from time to time.

“End User” shall mean any end user of a Customer Application.

“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Message” shall mean any communication with End Users made by or on behalf of Customer directly or indirectly through the Braze Services.

“Monthly Active Users” or “MAUs” shall mean the number of End Users who have recorded a session in a Customer Application (excluding the number of End Users who have recorded unique website sessions in the event Customer has purchased MUVs on the applicable Order Form) in the previous thirty (30) days, calculated nightly with a rolling 30-day window as set forth on an Order Form.

“Monthly Unique Visitors” or “MUVs” shall mean the number of End Users who have recorded a unique website session in the previous thirty (30) days, calculated nightly with a rolling 30-day window, as set forth on an Order Form.

“Order Form” shall mean the ordering document for Customer’s purchases of Services, directly or indirectly from Braze that are executed hereunder from time to time, including any schedules or addenda thereto. An Order Form will set forth Customer’s product and service entitlements, such as Business Units, Contacts, Data Points, Monthly Active Users, or Monthly Unique Visitors, as applicable.

“Restricted Information” shall mean: (i) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended “HIPAA”), or similar information under other comparable laws or regulations; or (iii) financial account numbers (including without limitation, credit or debit card numbers, or any related security codes or passwords), bank account numbers, or similar information.

“Start Date” shall mean the date on which Braze shall make the Braze Services available to Customer as set forth in an applicable Order Form.

“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.

“Third-Party Providers” shall mean a third-party provider chosen by Customer whose service or functionality interoperates with the Braze Services, at Customer’s sole discretion, in connection with Customer’s use of the Braze Services.

“User” shall mean an individual who is authorized by Customer to use the Braze Services. Users may include, for example, employees of Customer or its Affiliates, consultants, contractors and agents of Customer, and third parties with whom Customer transacts business.

2. BRAZE SERVICES

2.1 Provision of Braze Services. Braze shall make the Braze Services available to Customer pursuant to this Agreement and all Order Forms during a Subscription Term. Customer’s purchase of the Braze Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments made by Braze regarding future functionality or features.

2.2 Customer Affiliates. Customer Affiliates may purchase and use subscriptions to the Braze Services subject to the terms of this Agreement by executing Order Forms hereunder. This Agreement shall apply to such Customer Affiliates, and such Affiliates shall be deemed the “Customer” as contemplated herein. Customer Affiliates may also use the Services purchased by Customer without signing an Order Form if Customer makes certain employees of such Affiliate Users hereunder.

2.3 Braze Responsibilities. Braze shall: (a) ensure that the Braze Services perform in material compliance with the Documentation; (b) use commercially reasonable efforts to make the Braze Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which Braze shall make commercially reasonable efforts to give at least twenty-four (24) hours’ notice and which Braze shall schedule to the extent reasonably practicable from 10:00 PM until 7:00 AM, EST); or (ii) any unavailability caused by circumstances beyond Braze’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Braze employees), internet service provider, Third-Party Providers, or hosting facility failures or delays involving hardware, software or power systems not within Braze’s possession or reasonable control, and denial of service attacks; and (c) provide the Braze Services in accordance with applicable laws and governmental regulations when used according to this Agreement.

2.4 Customer Responsibilities. Customer is responsible for all actions taken by Customer or its Users in Customer’s account(s) and for Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy and legality of all Customer Data; (b) ensure that any user IDs, passwords, and other access credentials for the Braze Services are kept strictly confidential and not shared with any unauthorized person; (c) promptly notify Braze of any breach of security or unauthorized use of its account; (d) use commercially reasonable attempts to comply with requests made by Braze to update various features or functionalities within the Braze Services to optimize performance of the Braze Services to customers generally; (e) use the Braze Services in compliance with this Agreement, applicable Order Form(s), the Braze AUP and all applicable local, state, federal and foreign laws in using the Braze Services; and (f) provide notice and obtain any legally required consent for the use of tracking technologies used by the Services in creating End User profiles. Braze may, in its reasonable discretion, refuse to distribute Messages where the content of the Message, or the delivery of such Message to the recipient is, in Braze’s reasonable opinion, unlawful. Notwithstanding the foregoing, Braze has no obligation to review message content, or recipient addresses.

2.5 Use Guidelines. Customer shall use the Braze Services solely for its and its Affiliates’ business purposes as contemplated by this Agreement and shall not: (a) license, sell, resell, lease, transfer, distribute, or otherwise commercially exploit or make the Braze Services available to any third party; (b) send via or store within the Braze Services unlawful, offensive or tortious material; (c) use the Services to imitate or impersonate another person; (d) create false accounts for the purposes of sending unsolicited messages (spam); (e) send messages to individuals who have asked not to receive future messages from Customer (opted out); (f) send via, upload to, or store within the Braze Services any Malicious Code; (g) interfere with or disrupt the integrity or performance of the Braze Services or the data contained therein; (h) attempt to gain unauthorized access to the Braze Services or its related systems or networks; (i) use the Services to establish an individual’s eligibility for credit, employment or insurance; and (j) submit to the Braze Services or use the Braze Services to collect, store or process Restricted Information.

2.6 Protection of Customer Data. Braze will maintain administrative, physical and technical safeguards designed to protect the confidentiality and integrity of Customer Data. Braze will only access, use, process, modify, delete or disclose Customer Data (a) to provide the Services in accordance with this Agreement, (b) to provide support services and prevent or address service or technical problems, (c) as compelled by law in accordance with the Confidentiality section below or as required under applicable law, (d) to send to Users communications (i) about the Services, such as notice of scheduled maintenance, and (ii) of educational or informational nature to optimize their use of the Services, or (e) as expressly permitted in writing by Customer. To the extent that Braze processes any Personal Data (as defined in the DPA) contained in Customer Data, on Customer’s behalf, in the provision of the Services, the terms of the data processing addendum at https://www.braze.com/dpa/ (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.

2.7 Protection of the Services. Any use of the Braze Services by Customer that, in Braze’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Braze Services, or otherwise harms Braze, other customers or third parties, may result in immediate suspension of the Braze Services, however Braze will use commercially reasonable efforts under the circumstances to notify Customer in advance of such suspension and provide Customer with an opportunity to correct its usage prior to any such suspension. Braze will have no liability for any such suspension made in good faith. Unless this Agreement has been terminated, Braze will restore Customer’s access to the Braze Services once it verifies that Customer has resolved the condition requiring suspension.

3. FEES & PAYMENT

3.1 Braze Services Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Braze Services subscription(s) purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) fees paid are non-refundable, except pursuant to Section 9.3 (Termination for Cause); and (iv) the subscription entitlement(s) purchased cannot be decreased during the relevant Subscription Term.

3.2 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced electronically (i) in advance for the Braze Services, and (ii) monthly in arrears for excess usage, if applicable, and in both cases, in accordance with the applicable Order Form. Customer is responsible for maintaining complete and accurate billing and contact information within the Braze Services.

3.3 Overdue Payments. Braze may impose late fees as contemplated in each Order Form. If Customer’s account is 30 days or more overdue, Braze may, in addition to any of its other rights or remedies, upon written notice, suspend Customer’s access to the Braze Services until such amounts are paid in full. If such failure to pay has not been cured within 60 days of the due date, then upon written notice, Braze may terminate this Agreement and any or all outstanding Order Forms in accordance with the Termination for Cause section below.

3.4 Payment Disputes. Braze shall not exercise its rights under the “Overdue Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

3.5 Taxes. Unless otherwise stated, Braze’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use, sales or withholding taxes collected by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Braze’s net income or property. If Braze has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Braze with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. PROPRIETARY RIGHTS

4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Braze reserves all rights, title and interest in and to the Braze Services and Customer retains all rights to the Customer Application(s), including all related intellectual property rights therein and to any improvements, enhancements or updates thereto. No rights are granted to either party hereunder other than as expressly set forth herein. As between Braze and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.

4.2 Intellectual Property Restrictions. Customer shall not (a) modify, copy or create derivative works based on the Braze Services; (b) reverse engineer the Braze Services; (c) alter, remove or suppress in any manner any copyright, trademark or other notices displayed by the Services; or (d) access the Braze Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Braze Services.

4.3 Feedback. If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback relating to the Braze Services to Braze (collectively, “Feedback”), Customer acknowledges and agrees that Braze may incorporate into the Braze Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any Customer Confidential Information contained in the Feedback.

4.4 Marketing Rights. Braze may use Customer’s name verbally to identify Customer as a customer of Braze. With Customer’s consent, Braze may use Customer’s name in writing in any listing of its current customers and in marketing materials, and, so long as Braze complies with any Customer-provided trademark usage guidelines, Braze may use Customer’s logo in its marketing materials to promote the relationship between Braze and Customer. In addition, Customer shall, upon reasonable notice, and at mutually convenient times, participate in customer forums, marketing events or such other branded content in the form of case studies, blog posts, etc. as shall be mutually agreed between the parties.

5. CONFIDENTIALITY

5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party, or any of its Affiliates ( “Disclosing Party”), disclosed to the other party, or any of its Affiliates, ( “Receiving Party”) that is marked or designated as “Confidential” and/or “Proprietary”, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, all information and data relating to the provision of the Services, a party’s business and marketing plans, technology and technical information, product designs, and business processes. The terms and conditions of this Agreement are the Confidential Information of both parties, the pricing and other terms reflected in all Order Forms hereunder are the Confidential Information of Braze, and the Customer Data is the Confidential Information of Customer. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or any third party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

5.2 Confidentiality. The Receiving Party shall use 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) (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents ( “Representatives”) who need such access for purposes consistent with this Agreement and who are subject to written confidentiality obligations with the Receiving Party containing protections no less stringent than those contained herein. Receiving Party shall be liable for any breach of this Section 5 by its Representatives. Other than as otherwise provided herein, neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Representatives without the other party’s prior written consent.

5.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

5.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) or fails to limit access to any Confidential Information of the Disclosing Party in breach of the confidentiality obligations set forth herein, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

5.5 Survival. The obligation of Confidentiality set forth in this Section 5 shall survive termination or expiration of this Agreement.

6. WARRANTIES & DISCLAIMERS

6.1 Braze Warranties. Braze represents and warrants that the functionality and overall security of the Braze Services will not be materially decreased during a Subscription Term. In the event of a breach of this Section 6.1, Customer’s exclusive remedy shall be as provided in the “Termination for Cause” section below.

6.2 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRAZE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR STATEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY BRAZE. BRAZE MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY SOFTWARE USED BY CUSTOMER IN CONNECTION WITH THE BRAZE SERVICES. BRAZE WILL NOT BE LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM OR ON BEHALF OF CUSTOMER IN BREACH OF THIS AGREEMENT.

7. MUTUAL INDEMNIFICATION

7.1 Indemnification by Braze. Subject to Section 8 below, Braze shall defend Customer against any claims, demands, suits or proceedings ( “Claims”) made or brought against Customer by a third party alleging (a) that Customer’s use of the Braze Services within the scope of this Agreement infringes the intellectual property rights of such third party; (b) a breach by Braze of its confidentiality obligations under Section 5 hereof; or (c) gross negligence or willful misconduct by Braze, and will indemnify Customer from any damage or judgments finally awarded against Customer incurred in connection with a Claim. If Braze receives information about an infringement claim related to the Braze Services, Braze shall in its discretion and at no cost to Customer (i) modify the Braze Services so that they no longer infringe, without breaching Braze’s warranties under “Braze Warranties” above, (ii) obtain a license for Customer’s continued use of the Braze Services in accordance with this Agreement, or if (i) and (ii) are not reasonably practicable, then (iii) terminate Customer’s subscriptions for the Braze Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. Braze shall have no obligation to indemnify or defend Customer to the extent any Claim arises from Customer’s use of any Third-Party Provider’s services, or Customer’s use of the Braze Services in breach of this Agreement.

7.2 Indemnification by Customer. Subject to Section 8 below, Customer shall defend Braze against any Claims made or brought against Braze by a third party alleging (a) violation of applicable law arising from Customer’s use of the Braze Services in breach of this Agreement; (b) that Customer Data infringes the intellectual property rights of a third party; (c) a breach by Customer of its confidentiality obligations under Section 5 hereof; or (d) gross negligence or willful misconduct by Customer, and will indemnify Braze from any damage or judgments finally awarded against Braze incurred in connection with a Claim.

7.3 Procedure. The party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; provided, that failure to notify shall not relieve a party of its indemnification obligations unless the indemnifying party has been materially prejudiced thereby; (b) give the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle a Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim.

7.4 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this Section.

8. LIMITATION OF LIABILITY

8.1 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.

8.2 Exclusion of Indirect Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9. TERM & TERMINATION

9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have terminated or expired pursuant to the terms hereof.

9.2 Term of Subscriptions. Subscriptions to the Braze Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. Braze reserves the right to increase the fees on renewal by giving Customer at least sixty (60) days’ notice of such price increase; provided, however, that any such price increase shall not exceed 7% above the price that was in effect for the same products and services in the immediately preceding term. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

9.3 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Braze shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Braze prior to the effective date of termination. Upon any termination for cause by Braze, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term.

9.4 Customer Data Deletion. Braze shall enable Customer to export its Customer Data at any time during the term of this Agreement. In order to provide Customer with accurate analytical data and optimal performance of the Braze Services, Customer instructs Braze to remove the End User profiles from its production instance of End Users who are Inactive or Dormant as set forth and defined in the Documentation. Following the termination or expiration of this Agreement, Braze shall terminate provision of the Braze Services to Customer and shall delete or securely overwrite Customer Data, in accordance with this Agreement, applicable laws and the Documentation.

9.5 Surviving Provisions. Section 1 and Sections 3 through 10 shall survive any termination or expiration of this Agreement.

10. GENERAL PROVISIONS

10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

10.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

10.3 Beta Services. From time to time, Braze may invite Customer to try Beta Services. Customer may accept or decline any such trial in its sole discretion. Beta Services are for evaluation purposes and not for production use, are not considered “Braze Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Braze may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Braze shall have no liability for any harm or damage arising out of or in connection with a Beta Service.

10.4 Export Control and Sanctions Compliance. The Braze Services and derivatives thereof may be subject to export control and sanctions laws of the United States and other applicable government authorities. Customer will comply with, and ensure that its Users are in compliance with such laws, including without limitation, the U.S. Export Administration Regulations and U.S. sanctions (the “Export Control and Sanctions Laws”). Customer will not, directly or indirectly, export, re-export, transship, transfer, divert or otherwise dispose of any Braze products or related technology, or use or allow use of the Services: (i) to or by any individual, entity, or country prohibited by the Export Control and Sanctions Laws, including, without limitation, the prohibition against exports (A) into, or to a national or resident of, any country subject to U.S. sanctions or similar export restrictions (currently, Cuba, Iran, Syria, North Korea and the region of Crimea), or (B) to or by anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or other export control lists; or (ii) for any purpose prohibited by the Export Control and Sanctions Laws, including, without limitation, nuclear, chemical or biological weapons proliferation or development of missile technology. It is Customer’s sole responsibility to ensure that it and its Users comply with the Export Control and Sanctions Laws with regard to the use of Braze Services. Any use of the Services by Customer or Users that, in Braze’s reasonable judgment, is unlawful may result in immediate suspension of the Services. Braze will have no liability for any such suspension made in good faith.

10.5 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restrictions, it will use reasonable efforts to promptly notify Braze’s Legal Department at [email protected].

10.6 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) except for notices of termination or an indemnifiable claim ( “Legal Notices”), the day of sending by email. Legal Notices shall be identified as Legal Notices. Notices to Braze shall be addressed to the attention of its General Counsel. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

10.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.8 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

10.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.10 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules. The state and federal courts located in the State of New York, District of Manhattan, New York City, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

10.11 Entire Agreement. This Agreement is the entire agreement between the parties regarding Customer’s use of the Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, and (3) the body of this Agreement. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term or condition of this Agreement.

10.12 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

You are viewing Braze MSA (July 30, 2018 - December 6, 2018)

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER'S USE OF THE BRAZE SERVICES. BY USING THE BRAZE SERVICES, CUSTOMER AGREES TO COMPLY WITH THESE TERMS OF USE.

Last Updated: July 30, 2018

1. DEFINITIONS

“Affiliate” shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Braze Code” shall mean the code developed and provided by Braze to Customer for use in connection with the Braze Services, which may include SDK(s) or other similar code developed and provided by Braze.

“Braze Services” or “Services” shall mean the specific proprietary software-as-a-service product of Braze, specified in Customer’s Order Form, including any related Braze Code. Braze Services exclude any Beta Services.

“Beta Services” shall mean the services provided by Braze that are not generally available to customers.

“Business Unit” or “BU” shall mean, with respect to a single Customer, each of its Affiliates, businesses, divisions or brands that uses the Services hereunder where such use requires a separate instance, implementation, onboarding, and, if applicable, Currents connector and Premium Deliverability Services.

“Contacts” shall mean the number of End Users who have been or will be Messaged by Customer in any 12-month period commencing on the Start Date set forth on the applicable Order Form.

“Customer Application” shall mean Customer’s mobile applications or websites, as made available to its End Users.

“Customer Data” shall mean all electronic data or information submitted by or on behalf of Customer to, or collected from the Customer Application by, the Braze Services.

“Data Points” shall refer to a billable unit of use of the Braze Services, measured by a session start, session end, custom event or purchase recorded, as well as any attribute set on an End User profile. Data and events automatically collected by the Braze Services including, for example, push tokens, device information, and all campaign engagement tracking events, such as email opens and push notification clicks, are not counted as Data Points. For clarity, the setting of an End User’s profile information at one point in time shall count as a single Data Point.

“Documentation” shall mean the online Documentation for the Braze Services, accessible via http://www.braze.com, as updated from time to time.

“End User” shall mean any end user of a Customer Application.

“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Message” shall mean any communication with End Users made by or on behalf of Customer directly or indirectly through the Braze Services.

“Monthly Active Users” or “MAUs” shall mean the number of End Users who have recorded a session in a Customer Application (excluding the number of End Users who have recorded unique website sessions in the event Customer has purchased MUVs on the applicable Order Form) in the previous thirty (30) days, calculated nightly with a rolling 30-day window as set forth on an Order Form.

“Monthly Unique Visitors” or “MUVs” shall mean the number of End Users who have recorded a unique website session in the previous thirty (30) days, calculated nightly with a rolling 30-day window, as set forth on an Order Form.

“Order Form” shall mean the ordering document for Customer’s purchases of Services from Braze that are executed hereunder by the parties from time to time, including any schedules or addenda thereto. An Order Form will set forth Customer’s product and service entitlements, such as Business Units, Contacts, Data Points, Monthly Active Users, or Monthly Unique Visitors, as applicable.

“Restricted Information” shall mean: (i) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended “ HIPAA”), or similar information under other comparable laws or regulations; or (iii) financial account numbers (including without limitation, credit or debit card numbers, or any related security codes or passwords), bank account numbers, or similar information.

“Start Date” shall mean the date on which Braze shall make the Braze Services available to Customer as set forth in an applicable Order Form.

“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.

“Third-Party Providers” shall mean a third-party provider chosen by Customer whose service or functionality interoperates with the Braze Services, at Customer’s sole discretion, in connection with Customer’s use of the Braze Services.

“User” shall mean an individual who is authorized by Customer to use the Braze Services. Users may include, for example, employees of Customer or its Affiliates, consultants, contractors and agents of Customer, and third parties with whom Customer transacts business.

2. BRAZE SERVICES

2.1 Provision of Braze Services. Braze shall make the Braze Services available to Customer pursuant to this Agreement and all Order Forms during a Subscription Term. Customer’s purchase of the Braze Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments made by Braze regarding future functionality or features.

2.2 Customer Affiliates. Customer Affiliates may purchase and use subscriptions to the Braze Services subject to the terms of this Agreement by executing Order Forms hereunder. This Agreement shall apply to such Customer Affiliates, and such Affiliates shall be deemed the “Customer” as contemplated herein. Customer Affiliates may also use the Services purchased by Customer without signing an Order Form if Customer makes certain employees of such Affiliate Users hereunder.

2.3 Braze Responsibilities. Braze shall: (a) ensure that the Braze Services perform in material compliance with the Documentation; (b) use commercially reasonable efforts to make the Braze Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which Braze shall make commercially reasonable efforts to give at least twenty-four (24) hours’ notice and which Braze shall schedule to the extent reasonably practicable from 10:00 PM until 7:00 AM, EST); or (ii) any unavailability caused by circumstances beyond Braze’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Braze employees), computer, telecommunications, internet service provider, Third-Party Providers, or hosting facility failures or delays involving hardware, software or power systems not within Braze’s possession or reasonable control, and denial of service attacks; and (c) provide the Braze Services in accordance with applicable laws and governmental regulations when used according to this Agreement.

2.4 Customer Responsibilities. Customer is responsible for all actions taken by Customer or its Users in Customer’s account(s) and for Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy and legality of all Customer Data; (b) ensure that any user IDs, passwords, and other access credentials for the Braze Services are kept strictly confidential and not shared with any unauthorized person; (c) promptly notify Braze of any breach of security or unauthorized use of its account; (d) use commercially reasonable attempts to comply with requests made by Braze to update various features or functionalities within the Braze Services to optimize performance of the Braze Services to customers generally; (e) comply with all applicable local, state, federal and foreign laws in using the Braze Services; and (f) provide notice and obtain any legally required consent for the use of tracking technologies used by the Services in creating End User profiles. Braze may, in its reasonable discretion, refuse to distribute Messages where the content of the Message, or the delivery of such Message to the recipient is, in Braze’s reasonable opinion, unlawful. Notwithstanding the foregoing, Braze has no obligation to review message content, or recipient addresses.

2.5 Use Guidelines. Customer shall use the Braze Services solely for its and its Affiliates’ business purposes as contemplated by this Agreement and shall not: (a) license, sell, resell, lease, transfer, distribute, or otherwise commercially exploit or make the Braze Services available to any third party; (b) send via or store within the Braze Services unlawful, offensive or tortious material; (c) use the Services to imitate or impersonate another person; (d) create false accounts for the purposes of sending unsolicited messages (spam); (e) send messages to individuals who have asked not to receive future messages from Customer (opted out); (f) send via, upload to, or store within the Braze Services any Malicious Code; (g) interfere with or disrupt the integrity or performance of the Braze Services or the data contained therein; (h) attempt to gain unauthorized access to the Braze Services or its related systems or networks; (i) use the Services to establish an individual’s eligibility for credit, employment or insurance; and (j) submit to the Braze Services or use the Braze Services to collect, store or process Restricted Information. Braze will communicate with Users to educate and inform them of ways to optimize their use of the Services.

2.6 Protection of Customer Data. Braze will maintain administrative, physical and technical safeguards designed to protect the confidentiality and integrity of Customer Data. Braze will only access, use, process, modify, delete or disclose Customer Data (a) to provide the Services in accordance with this Agreement), (b) to provide support services and prevent or address service or technical problems, (c) as compelled by law in accordance with the Confidentiality section below or as required under applicable law, (d) to send to Users communications (i) about the Services, such as notice of scheduled maintenance, and (ii) of educational or informational nature to optimize their use of the Services, or (e) as expressly permitted in writing by Customer. To the extent that Braze processes any Personal Data (as defined in the DPA) contained in Customer Data, on Customer’s behalf, in the provision of the Services, the terms of the data processing addendum at https://www.braze.com/dpa/ (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Customer and its applicable Affiliates are each the data exporter, and Customer’s signing of this Agreement, and an applicable Affiliate’s signing of an Order Form, shall be treated as signing of the Standard Contractual Clauses and their appendices.

2.7 Protection of the Services. Any use of the Braze Services by Customer that, in Braze’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Braze Services, or otherwise harms other customers or third parties, may result in immediate suspension of the Braze Services, however Braze will use commercially reasonable efforts under the circumstances to notify Customer in advance of such suspension and provide Customer with an opportunity to correct its usage prior to any such suspension. Braze will have no liability for any such suspension made in good faith. Unless this Agreement has been terminated, Braze will restore Customer’s access to the Braze Services once it verifies that Customer has resolved the condition requiring suspension.

3. FEES & PAYMENT

3.1 Braze Services Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Braze Services purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) fees paid are non-refundable; and (iv) the Braze Services purchased cannot be decreased during the relevant Subscription Term.

3.2 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced electronically (i) in advance for the Braze Services, and (ii) monthly in arrears for excess usage, if applicable, and in both cases, in accordance with the applicable Order Form. Customer is responsible for maintaining complete and accurate billing and contact information within the Braze Services.

3.3 Overdue Payments. Braze may impose late fees as contemplated in each Order Form. If Customer’s account is 30 days or more overdue, Braze may, in addition to any of its other rights or remedies, upon written notice, suspend Customer’s access to the Braze Services until such amounts are paid in full. If such failure to pay has not been cured within 60 days of the due date, then upon written notice, Braze may terminate this Agreement and any or all outstanding Order Forms in accordance with the Termination for Cause section below.

3.4 Payment Disputes. Braze shall not exercise its rights under the “Overdue Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

3.5 Taxes. Unless otherwise stated, Braze’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use, sales or withholding taxes collected by any jurisdiction whatsoever (collectively, “ Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Braze’s net income or property. If Braze has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Braze with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. PROPRIETARY RIGHTS

4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Braze reserves all rights, title and interest in and to the Braze Services and Customer retains all rights to the Customer Application(s), including all related intellectual property rights therein and to any improvements, enhancements or updates thereto. No rights are granted to either party hereunder other than as expressly set forth herein.

4.2 Intellectual Property Restrictions. Customer shall not (a) modify, copy or create derivative works based on the Braze Services; (b) reverse engineer the Braze Services; (c) alter, remove or suppress in any manner any copyright, trademark or other notices displayed by the Services; or (d) access the Braze Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Braze Services.

4.3 Customer Data. As between Braze and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Notwithstanding the foregoing, Braze may during the term hereof aggregate anonymized Customer Data with other data, including anonymized customer data of other Braze customers, as long as the results of such aggregation omit Customer Data, all personally identifiable information and all other data that would enable the identification of Customer, its End Users, or any individual, company or organization, solely to (x) provide the Services, (y) to obtain feedback on and improve the Braze Services, and (z) to provide consultative and analytical information to our customers generally. Braze shall own all right, title and interest in and to such aggregated data.

4.4 Feedback. If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback relating to the Braze Services to Braze (collectively, “ Feedback”), Customer acknowledges and agrees that Braze may incorporate into the Braze Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any Customer Confidential Information contained in the Feedback.

4.5 Marketing Rights. Braze may use Customer’s name verbally to identify Customer as a customer of Braze. With Customer’s consent, Braze may use Customer’s name in writing in any listing of its current customers and in marketing materials, and, so long as Braze complies with any Customer-provided trademark usage guidelines, Braze may use Customer’s logo in its marketing materials to promote the relationship between Braze and Customer. In addition, Customer shall, upon reasonable notice, and at mutually convenient times, participate in customer forums, marketing events or such other branded content in the form of case studies, blog posts, etc. as shall be mutually agreed between the parties.

5. CONFIDENTIALITY

5.1 Definition of Confidential Information. As used herein, “ Confidential Information” means all confidential and proprietary information of a party, or any of its Affiliates (“ Disclosing Party”) disclosed to the other party, or any of its Affiliates (“ Receiving Party”) that is marked or designated as “Confidential” and/or “Proprietary”, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, all information and data relating to the provision of the Services, a party’s business and marketing plans, technology and technical information, product designs, and business processes. The terms and conditions of this Agreement are the Confidential Information of both parties, the pricing and other terms reflected in all Order Forms hereunder are the Confidential Information of Braze, and the Customer Data is the Confidential Information of Customer. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or any third party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

5.2 Confidentiality. The Receiving Party shall use 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) (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents (“ Representatives”) who need such access for purposes consistent with this Agreement and who are subject to written confidentiality obligations with the Receiving Party containing protections no less stringent than those contained herein. Other than as otherwise provided herein, neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Representatives without the other party’s prior written consent.

5.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

5.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations set forth herein, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

5.5 Survival. The obligation of Confidentiality set forth in this Section 5 shall survive termination or expiration of this Agreement.

6. WARRANTIES & DISCLAIMERS

6.1 Braze Warranties. Braze represents and warrants that the functionality and overall security of the Braze Services will not be materially decreased during a Subscription Term. In the event of a breach of this Section 6.1, Customer’s exclusive remedy shall be as provided in the “Termination for Cause” section below.

6.2 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRAZE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR STATEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY BRAZE. BRAZE MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY SOFTWARE USED BY CUSTOMER IN CONNECTION WITH THE BRAZE SERVICES. BRAZE WILL NOT BE LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM OR ON BEHALF OF CUSTOMER IN BREACH OF THIS AGREEMENT.

7. MUTUAL INDEMNIFICATION

7.1 Indemnification by Braze. Subject to Section 8 below, Braze shall defend Customer against any claims, demands, suits or proceedings (“ Claims”) made or brought against Customer by a third party alleging (a) that Customer’s use of the Braze Services within the scope of this Agreement infringes the intellectual property rights of such third party; (b) a breach by Braze of its confidentiality obligations under Section 6 hereof; or (c) gross negligence or willful misconduct by Braze, and will indemnify Customer from any damage or judgments finally awarded against Customer incurred in connection with a Claim. If Braze receives information about an infringement claim related to the Braze Services, Braze shall in its discretion and at no cost to Customer (i) modify the Braze Services so that they no longer infringe, without breaching Braze’s warranties under “Braze Warranties” above, (ii) obtain a license for Customer’s continued use of the Braze Services in accordance with this Agreement, or if (i) and (ii) are not reasonably practicable, then (iii) terminate Customer’s subscriptions for the Braze Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. Braze shall have no obligation to indemnify or defend Customer to the extent any Claim arises from Customer’s use of any Third-Party Provider’s services, or Customer’s use of the Braze Services in breach of this Agreement.

7.2 Indemnification by Customer. Subject to Section 8 below, Customer shall defend Braze against any Claims made or brought against Braze by a third party alleging (a) violation of applicable law arising from Customer’s use of the Braze Services in breach of this Agreement; (b) that Customer Data infringes the intellectual property rights of a third party; (c) a breach by Customer of its confidentiality obligations under Section 5 hereof; or (d) gross negligence or willful misconduct by Customer, and will indemnify Braze from any damage or judgments finally awarded against Braze incurred in connection with a Claim.

7.3 Procedure. The party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; provided, that failure to notify shall not relieve a party of its indemnification obligations unless the indemnifying party has been materially prejudiced thereby; (b) give the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle a Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim.

7.4 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this section.

8. LIMITATION OF LIABILITY

8.1 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.

8.2 Exceptions to Limitation of Liability. NOTWITHSTANDING THE FOREGOING, THE PARTIES’ INDEMNIFICATION OBLIGATIONS FOR THE FOLLOWING THIRD PARTY CLAIMS SHALL BE UNCAPPED:
(A)GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND
(B)INTELLECTUAL PROPERTY INFRINGEMENT.

8.3 Exclusion of Indirect Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9. TERM & TERMINATION

9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have terminated or expired pursuant to the terms hereof.

9.2 Term of Subscriptions. Subscriptions to the Braze Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. Braze reserves the right to increase the fees on renewal by giving Customer at least sixty (60) days’ notice of such price increase; provided, however, that any such price increase shall not exceed 7% above the price that was in effect for the same products and services in the immediately preceding term. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

9.3 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Braze shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Braze prior to the effective date of termination. Upon any termination for cause by Braze, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term.

9.4 Customer Data Deletion. Braze shall enable Customer to export its Customer Data at any time during the term of this Agreement. In order to provide Customer with accurate analytical data and optimal performance of the Braze Services, Customer instructs Braze to remove the End User profiles from its production instance of End Users who are Inactive or Dormant as set forth and defined in the Documentation. Following the termination or expiration of this Agreement, Braze shall terminate provision of the Braze Services to Customer and shall delete or securely overwrite Customer Data, in accordance with this Agreement, applicable laws and the Documentation.

9.5 Surviving Provisions. Section 1 and Sections 5 through 10 shall survive any termination or expiration of this Agreement.

10. GENERAL PROVISIONS

10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

10.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

10.3 Beta Services. From time to time, Braze may invite Customer to try Beta Services. Customer may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Braze Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Braze may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Braze shall have no liability for any harm or damage arising out of or in connection with a Beta Service.

10.4 Export Control and Sactions Compliance. The Braze Services and derivatives thereof may be subject to export control and sanctions laws of the United States and other applicable government authorities. Customer will comply with, and ensure that its Users are in compliance with such laws, including without limitation, the U.S. Export Administration Regulations and U.S. sanctions (the “Export Control and Sanctions Laws”). Customer will not, directly or indirectly, export, re-export, transship, transfer, divert or otherwise dispose of any Braze products or related technology, or use or allow use of the Services: (i) to or by any individual, entity, or country prohibited by the Export Control and Sanctions Laws, including, without limitation, the prohibition against exports (A) into, or to a national or resident of, any country subject to U.S. sanctions or similar export restrictions (i.e., Cuba, Iran, Sudan, Syria, North Korea and Crimea), or (B) to or by anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or other export control lists; or (ii) for any purpose prohibited by the Export Control and Sanctions Laws, including, without limitation, nuclear, chemical or biological weapons proliferation or development of missile technology. It is Customer’s sole responsibility to ensure that it and its Users comply with the Export Control and Sanctions Laws with regard to the use of Braze Services. Any use of the Services by Customer or Users that, in Braze’s reasonable judgment, is unlawful may result in immediate suspension of the Services. Braze will have no liability for any such suspension made in good faith.

10.5 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restrictions, it will use reasonable efforts to promptly notify Braze’s Legal Department at [email protected].

10.6 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) except for notices of termination or an indemnifiable claim (“ Legal Notices”), the day of sending by email. Legal Notices shall be identified as Legal Notices. Notices to Braze shall be addressed to the attention of its General Counsel. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

10.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.8 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

10.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.10 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules. The state and federal courts located in the State of New York, District of Manhattan, New York City, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

10.11 Entire Agreement. This Agreement is the entire agreement between the parties regarding Customer’s use of the Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, and (3) the body of this Agreement. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term or condition of this Agreement.

10.12 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

You are viewing Braze MSA (November 21, 2017 - July 29, 2018)

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER'S USE OF THE BRAZE SERVICES. BY USING THE BRAZE SERVICES, CUSTOMER AGREES TO COMPLY WITH THESE TERMS OF USE.

Last Updated: November 21, 2017

1. DEFINITIONS

“Affiliate” shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Braze Code” shall mean the code developed and provided by Braze to Customer for use in connection with the Braze Services, which may include SDK(s) or other similar code developed and provided by Braze.

“Braze Services” or “Services” shall mean the specific proprietary software-as-a-service product of Braze, specified in Customer’s Order Form, including any related Braze Code. Braze Services exclude any Beta Services.

“Beta Services” shall mean Braze Services that are not generally available to customers.

“Customer Application” shall mean Customer’s mobile applications or web domains, as made available to its End Users.

“Customer Data” shall mean all electronic data or information submitted by or on behalf of Customer to, or collected and processed by, the Braze Services.

“Data Points” shall refer to a billable unit of use of the Braze Services, measured by a session start, session end, custom event or purchase recorded, as well as any attribute set on an End User profile. Data and events automatically collected by the Braze Services including, for example, push tokens, device information, location data and all campaign engagement tracking events, such as email opens and push notification clicks, are not counted as Data Points. For clarity, the setting of an End User’s profile information at one point in time shall count as a single Data Point.

“Documentation” shall mean the online Documentation for the Braze Services, accessible via http://www.braze.com, as updated from time to time.

“Dormant User” shall mean an End User who has not recorded a session in a Customer Application nor been messaged or updated by Customer in the past twelve (12) months.

“End User” shall mean any end user of a Customer Application.

“Inactive User” shall mean any End User who is not reachable by Customer and who, for the past six (6) months (i) has not recorded a session in a Customer Application, (ii) has not been updated by Customer, and (iii) has not been Messaged.

“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Message” shall mean any communication with End Users made by or on behalf of Customer directly or indirectly through the Braze Services.

“Monthly Active Users” or “MAUs” shall mean the number of End Users who have recorded a session in a Customer Application or website in the previous thirty (30) days, calculated nightly with a rolling 30-day window as set forth on an Order Form.

“Order Form” shall mean the ordering documents for Customer’s purchases of Services from Braze that are executed hereunder by the parties from time to time, including any schedules or addenda thereto.

“Personal Information” shall mean any Customer Data relating to an identified or identifiable person.

“Restricted Information” shall mean: (i) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended “ HIPAA”), or similar information under other comparable laws or regulations; or (iii) financial account numbers (including without limitation, credit or debit card numbers, or any related security codes or passwords), bank account numbers, or similar information.

“Start Date” shall mean the date on which Braze shall make the Braze Services available to Customer as set forth in an applicable Order Form.

“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.

“Third-Party Providers” shall mean a third-party provider chosen by Customer whose service or functionality interoperates with the Braze Services, such as Google, Facebook, Apple, Microsoft or Amazon.

“User” shall mean an individual who is authorized by Customer to use the Braze Services. Users may include, for example, employees of Customer or its Affiliates, consultants, contractors and agents of Customer, and third parties with whom Customer transacts business.

2. BRAZE SERVICES

2.1 Provision of Braze Services. Braze shall make the Braze Services available to Customer pursuant to this Agreement and all Order Forms during a Subscription Term. Customer’s purchase of Braze Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments made by Braze regarding future functionality or features. Braze reserves the right to reclassify an End User as an Inactive User or as Dormant, as applicable and to archive Customer Data with respect to such End User. Braze shall retain such Customer Data in an inactive status and can export that data to Customer upon request. The Customer Data of Inactive Users and Dormant Users can be merged by Customer into active profiles in Customer’s discretion.

2.2 Customer Affiliates. Customer Affiliates may purchase and use subscriptions to the Braze Services subject to the terms of this Agreement by executing Order Forms hereunder. This Agreement shall apply to such Customer Affiliates, and such Affiliates shall be deemed the “Customer” as contemplated herein. Customer Affiliates may also use the Services purchased by Customer without signing an Order Form if Customer makes certain employees of such Affiliate Users hereunder.

2.3 Riders for Certain Additional Services. If Customer desires to purchase certain marketing solutions, such as email, as part of the Braze Services, Customer acknowledges that certain additional terms and conditions may apply to the provision of such additional services. Customer must agree in writing to the applicable Rider to this Agreement in connection with the purchase of such additional services.

3. USE OF THE BRAZE SERVICES

3.1 Braze Responsibilities. Braze shall: (a) ensure that the Braze Services perform in material compliance with the Documentation; (b) use commercially reasonable efforts to make the Braze Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which Braze shall make commercially reasonable efforts to give at least twenty-four (24) hours’ notice and which Braze shall schedule to the extent reasonably practicable from 10:00 PM until 7:00 AM, EST); or (ii) any unavailability caused by circumstances beyond Braze’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Braze employees), computer, telecommunications, internet service provider, Third-Party Providers, or hosting facility failures or delays involving hardware, software or power systems not within Braze’s possession or reasonable control, and denial of service attacks; and (c) provide the Braze Services in accordance with applicable laws and governmental regulations when used according to this Agreement.

3.2 Customer Responsibilities. Customer is responsible for all actions taken by Customer or its Users in Customer’s account(s) and for Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy and legality of all Customer Data; (b) maintain a legally-adequate privacy policy on its Customer Application(s); (c) obtain all necessary rights, releases and consent to allow Customer Data, including Personal Information, to be collected, used and disclosed in the manner contemplated by this Agreement; (d) ensure that any user IDs, passwords, and other access credentials for the Braze Services are kept strictly confidential and not shared with any unauthorized person; (e) promptly notify Braze of any breach of security or unauthorized use of its account; (f) use commercially reasonable attempts to comply with requests made by Braze to update various features or functionalities within the Braze Services to optimize performance of the Braze Services to customers generally; (f) comply with all applicable local, state, federal and foreign laws in using the Braze Services; and (h) provide notice and obtain any legally required consent for the use of tracking technologies used by the Services in creating End User profiles. Braze may, in its reasonable discretion, refuse to distribute Messages where the content of the Message, or the delivery of such Message to the recipient is, in Braze’s reasonable opinion, unlawful. Notwithstanding the foregoing, Braze has no obligation to review message content, or recipient addresses.

3.3 Use Guidelines. Customer shall use the Braze Services solely for its and its Affiliates business purposes as contemplated by this Agreement and shall not: (a) license, sell, resell, lease, transfer, distribute, or otherwise commercially exploit or make the Braze Services available to any third party; (b) send via or store within the Braze Services unlawful, offensive or tortious material, including, without limitation, hate speech or discriminatory content; (c) imitate or impersonate another person or his, her or its email or other address or contact information; (d) create false accounts for the purposes of sending unsolicited messages (spam); (e) send messages to individuals who have asked not to receive future messages from Customer (opted out); (f) send via, upload to, or store within the Braze Services any Malicious Code; (g) interfere with or disrupt the integrity or performance of the Braze Services or the data contained therein; or (h) attempt to gain unauthorized access to the Braze Services or its related systems or networks. Any use of the Braze Services by Customer or Users that, in Braze’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Braze Services, or otherwise harms other customers or third parties, may result in immediate suspension of the Braze Services, however Braze will use commercially reasonable efforts under the circumstances to notify Customer in advance of such suspension and provide Customer with an opportunity to correct its usage prior to any such suspension. Braze will have no liability for any such suspension made in good faith. However, unless this Agreement has been terminated, Braze will cooperate with Customer to restore access to the Braze Services once it verifies that Customer has resolved the condition requiring suspension.

3.4 Protection of Customer Data. Braze will maintain administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Braze personnel, except (a) to provide the Services (including the provision of feedback to Customer concerning its use of the Braze Services) and prevent or address service or technical problems, (b) as compelled by law in accordance with the Confidentiality section below, or (c) as expressly permitted in writing by Customer.

3.5 Legal Requirements. The Braze Services may not be used to establish an individual’s eligibility for credit, employment or insurance. Customer shall not submit to the Braze Services or use the Braze Services to collect, store or process Restricted Information.

3.6 Third-Party Provider Interaction. Customer may, at its sole discretion, enable the Braze Services to access Customer’s Third-Party Provider accounts in connection with Customer’s use of the Braze Services.

4. FEES & PAYMENT

4.1 Braze Services Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Braze Services purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) fees paid are non-refundable; and (iv) the Braze Services purchased cannot be decreased during the relevant Subscription Term.

4.2 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced electronically (i) in advance for the Braze Services, and (ii) monthly in arrears for excess usage, if applicable, and in both cases, in accordance with the applicable Order Form. Customer is responsible for maintaining complete and accurate billing and contact information within the Braze Services.

4.3 Overdue Payments. Braze may impose late fees as contemplated in each Order Form. If Customer’s account is 30 days or more overdue, Braze may, in addition to any of its other rights or remedies, upon written notice, suspend Customer’s access to the Braze Services until such amounts are paid in full. If such failure to pay has not been cured within 60 days of the due date, then upon written notice, Braze may terminate this Agreement and any or all outstanding Order Forms in accordance with the Termination for Cause section below.

4.4 Payment Disputes. Braze shall not exercise its rights under the “Overdue Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

4.5 Taxes. Unless otherwise stated, Braze’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use, sales or withholding taxes collected by any jurisdiction whatsoever (collectively, “ Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Braze’s net income or property. If Braze has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Braze with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. PROPRIETARY RIGHTS

5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Braze reserves all rights, title and interest in and to the Braze Services and Customer retains all rights to the Customer Application(s), including all related intellectual property rights therein and to any improvements, enhancements or updates thereto. No rights are granted to either party hereunder other than as expressly set forth herein.

5.2 Restrictions. Customer shall not (a) modify, copy or create derivative works based on the Braze Services; (b) reverse engineer the Braze Services; (c) alter, remove or suppress in any manner any copyright, trademark or other notices displayed by the Services; or (d) access the Braze Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Braze Services.

5.3 Customer Data. As between Braze and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Notwithstanding the foregoing, during the term hereof, Customer grants to Braze a worldwide, non-exclusive, royalty-free license to access Customer Data to aggregate or compile such Customer Data with other data, including the customer data of other Braze customers, so long as such aggregation or compilation omits any Personal Information or any other data that would enable the identification of Customer, its End Users, or any individual, company or organization (“ Aggregated Data”), solely to (x) provide the Services, (y) to obtain feedback on and improve the Braze Services, and (z) to provide consultative and analytical information to our customers generally. Braze may create derivative works based on such Aggregated Data (“ Aggregated Data Reports”). Braze shall own all right, title and interest in and to the Aggregated Data Reports.

5.4 Feedback. If Customer elects to provide any suggestions, comments, improvements, ideas or other feedback relating to the Braze Services to Braze (collectively, “ Feedback”), Customer acknowledges and agrees that Braze may incorporate into the Braze Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any Customer Confidential Information contained in the Feedback.

5.5 Marketing Rights. Braze may use Customer’s name in any discussion of its current customers and in marketing materials, and, so long as Braze complies with any Customer-provided trademark usage guidelines, Braze may use Customer’s logo in its marketing materials to promote the relationship between Braze and Customer. In addition, Customer shall, upon reasonable notice, and at mutually convenient times, participate in customer forums, marketing events or such other branded content in the form of case studies, blog posts, etc. as shall be mutually agreed between the parties.

6. CONFIDENTIALITY

6.1 Definition of 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”) that is marked or designated as “Confidential” and/or “Proprietary”, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, all information and data relating to the provision of the Services, a party’s business and marketing plans, technology and technical information, product designs, and business processes. The terms and conditions of this Agreement are the Confidential Information of both parties, the pricing and other terms reflected in all Order Forms hereunder are the Confidential Information of Braze, and the Customer Data is the Confidential Information of Customer. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or any third party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality. The Receiving Party shall use 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) (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents (“ Representatives”) who need such access for purposes consistent with this Agreement and who are subject to written confidentiality obligations with the Receiving Party containing protections no less stringent than those contained herein. Other than as otherwise provided herein, neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Representatives without the other party’s prior written consent.

6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations set forth herein, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

6.5 Survival. The obligation of Confidentiality set forth in this Section 6 shall survive termination or expiration of this Agreement.

7. WARRANTIES & DISCLAIMERS

7.1 Braze Warranties. Braze represents and warrants that the functionality and overall security of the Braze Services will not be materially decreased during a Subscription Term. In the event of a breach of this Section 7.1, Customer’s exclusive remedy shall be as provided in the “Termination for Cause” section below.

7.2 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRAZE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR STATEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY BRAZE. BRAZE MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY SOFTWARE USED BY CUSTOMER IN CONNECTION WITH THE BRAZE SERVICES. BRAZE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM OR ON BEHALF OF CUSTOMER IN BREACH OF THIS AGREEMENT.

8. MUTUAL INDEMNIFICATION

8.1 Indemnification by Braze. Braze shall defend, and subject to Section 9.1 below, hold Customer harmless against any claims, demands, suits or proceedings (“ Claims”) made or brought against Customer by a third party alleging (a) that Customer’s use of the Braze Services within the scope of this Agreement infringes the intellectual property rights of such third party; (b) a breach by Braze of its confidentiality obligations under Section 6 hereof; or (c) gross negligence or willful misconduct by Braze, and will indemnify Customer from any damage, costs (including reasonable attorneys’ fees), or judgments finally awarded against Customer incurred in connection with a Claim. If Braze receives information about an infringement claim related to the Braze Services, Braze shall in its discretion and at no cost to Customer (i) modify the Braze Services so that they no longer infringe, without breaching Braze’s warranties under “Braze Warranties” above, (ii) obtain a license for Customer’s continued use of the Braze Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the Braze Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. Braze shall have no obligation to indemnify Customer to the extent any Claim arises from Customer’s use of any Third Party Provider’s services, or Customer’s use of the Braze Services in breach of this Agreement.

8.2 By Customer. Customer shall defend, and subject to Section 9.1 below, hold Braze harmless against any Claims made or brought against Braze by a third party alleging (a) violation of applicable law arising from Customer’s use of the Braze Services in breach of this Agreement; (b) that Customer Data infringes the intellectual property rights of a third party; (c) a breach by Customer of its confidentiality obligations under Section 6 hereof; or (d) gross negligence or willful misconduct by Customer, and will indemnify Braze from any damage, costs (including reasonable attorneys’ fees), or judgments finally awarded against Braze incurred in connection with a Claim.

8.3 Procedure. As an express condition to the indemnifying party’s obligation under this Section 8, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; provided, that failure to notify shall not relieve a party of its indemnification obligations unless the indemnifying party has been materially prejudiced thereby; (b) give the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle a Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim.

8.4 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this section.

9. LIMITATION OF LIABILITY

9.1 Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH BELOW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.

9.2 Exceptions to Limitation of Liability. NOTWITHSTANDING THE FOREGOING, THE PARTIES’ INDEMNIFICATION OBLIGATIONS FOR THE FOLLOWING THIRD PARTY CLAIMS SHALL BE UNCAPPED:
(A)GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND
(B)INTELLECTUAL PROPERTY INFRINGEMENT.

9.3 Exclusion of Indirect Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10. TERM & TERMINATION

10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have terminated or expired pursuant to the terms hereof.

10.2 Term of Subscriptions. Subscriptions to the Braze Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. Braze reserves the right to increase the fees on renewal by giving Customer at least sixty (60) days’ notice of such price increase; provided, however, that any such price increase shall not exceed 7% above the price that was in effect for the same products and services in the immediately preceding term.

10.3 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Braze shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Braze prior to the effective date of termination. Upon any termination for cause by Braze, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term.

10.4 Customer Data Deletion. Following the termination or expiration of this Agreement, Braze shall terminate provision of the Braze Services to Customer, and convert Customer’s account to an inactive status. Braze shall securely overwrite or delete Customer Data 60 days following any such termination.

10.5 Surviving Provisions. Section 1 and Sections 6 through 11 shall survive any termination or expiration of this Agreement.

11. GENERAL PROVISIONS

11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.3 Beta Services. From time to time, Braze may invite Customer to try Beta Services. Customer may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Braze Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Braze may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Braze shall have no liability for any harm or damage arising out of or in connection with a Beta Service.

11.4 Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer and Braze each represents that it is not named on any U.S. government denied-party list. Customer shall not, and shall not permit any User to, access or use any Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

11.5 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restrictions, it will use reasonable efforts to promptly notify Braze’s Legal Department at [email protected].

11.6 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Legal Notices shall be identified as Legal Notices. Notices to Braze shall be addressed to the attention of its General Counsel. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer shall be addressed to Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

11.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.8 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

11.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party 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.

11.10 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules. The state and federal courts located in the State of New York, District of Manhattan, New York City, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

11.11 Entire Agreement. This Agreement is the entire agreement between the parties regarding Customer’s use of the Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, and (3) the body of this Agreement. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.

11.12 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

12. EMAIL MESSAGING ADDENDUM TO MASTER SUBSCRIPTION AGREEMENT

Customer’s use of the email functionality within the Braze Services shall be subject to the additional terms set forth in this Addendum. Capitalized terms used but not defined in this Addendum shall have the meanings ascribed to them in the Agreement.

12.1 Email Footer. Customer shall add a legally–adequate footer to each email sent via the Braze Services.

12.2 Use of Email. Customer is responsible for (a) the creation, initiation and sending of messages to third parties, including without limitation, complying with any laws, regulations or rules applicable to the sending of those messages (including, where applicable, obtaining consent to send those messages), and (b) the integrity of the lists it uploads into the Braze Services. If Customer cause its or Braze’s delivery partners addresses to be listed as a source of spam by key internet service providers or third party blacklisting organizations (i.e., blacklisted), Customer will be held responsible for the blacklisting and any damages arising therefrom. Until the blacklisting has been resolved, Customer’s ability to send email using the Braze Services may be suspended. After three blacklisting incidents, Braze will be entitled to terminate this Agreement and all outstanding Order Forms immediately upon notice to Customer.

Except as modified by this Addendum, the Agreement remains unmodified and in full force and effect.

You are viewing Braze MSA (September 1st, 2017 - November 21, 2017)

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF THE APPBOY SERVICES.

BY USING THE APPBOY SERVICES, YOU ARE AGREEING TO COMPLY WITH THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. DO NOT USE THE APPBOY SERVICES IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT.

Last Updated: September 1, 2017

1. DEFINITIONS

“Affiliate” shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Appboy Code” shall mean the code developed and provided by Appboy to You for use in connection with the Appboy Services, which may include SDK(s) or other similar code developed and provided by Appboy.

“Appboy Services” or “Services” shall mean the specific proprietary software-as-a-service product of Appboy, specified in Your Order Form, including any related Appboy Code. Appboy Services exclude any Beta Services.

“Beta Services” shall mean Appboy Services that are not generally available to customers.

“Customer Application” shall mean Your mobile applications or web domains, as made available to Your End Users.

“Customer Data” shall mean all electronic data or information submitted by or on behalf of You to, or collected and processed by, the Appboy Services.

“Data Points” shall refer to a billable unit of use of the Appboy Services, measured by a session start, session end, custom event or purchase recorded, as well as any attribute set on an End User profile. Data and events automatically collected by the Appboy Services including, for example, push tokens, device information, location data and all campaign engagement tracking events, such as email opens and push notification clicks, are not counted as Data Points. For clarity, the setting of an End User’s profile information at one point in time shall count as a single Data Point.

“Documentation” shall mean the online Documentation for the Appboy Services, accessible via https://www.appboy.com, as updated from time to time.

“Dormant User” shall mean an End User who has not recorded a session in a Customer Application nor been messaged or updated by You in the past twelve (12) months.

“End User” shall mean any end user of a Customer Application.

“Inactive User” shall mean any End User who is not reachable by You and who, for the past six (6) months (i) has not recorded a session in a Customer Application, (ii) has not been updated by You, and (iii) has not been Messaged.

“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Message” shall mean any communication with End Users made by or on behalf of You directly or indirectly through the Appboy Services.

“Monthly Active Users or MAUs” shall mean the number of End Users who have recorded a session in a Customer Application or website in the previous thirty (30) days, calculated nightly with a rolling 30-day window as set forth on an Order Form.

“Order Form” shall mean the ordering documents for Your purchases of Services from Appboy that are executed hereunder by the parties from time to time, including any schedules or addenda thereto.

“Personal Information” shall mean any Customer Data relating to an identified or identifiable person.

“Restricted Information” shall mean: (i) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended “ HIPAA”), or similar information under other comparable laws or regulations; or (iii) financial account numbers (including without limitation, credit or debit card numbers, or any related security codes or passwords), bank account numbers, or similar information.

“Start Date” shall mean the date on which Appboy shall make the Appboy Services available to You as set forth in an applicable Order Form.

“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.

“Third Party Providers” shall mean a third-party provider chosen by You whose service or functionality interoperates with the Appboy Services, such as Google, Facebook, Apple, Microsoft or Amazon.

1.21 “User” shall mean an individual who is authorized by You to use the Appboy Services. Users may include, for example, employees of You or Your Affiliates, consultants, contractors and agents of Yours, and third parties with whom You transacts business.

2. APPBOY SERVICES

2.1 Provision of Appboy Services. Appboy shall make the Appboy Services available to You pursuant to this Agreement and all Order Forms during a Subscription Term. Your purchase of Appboy Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments made by Appboy regarding future functionality or features. Appboy reserves the right to reclassify an End User as an Inactive User or as Dormant, as applicable, and to archive Customer Data with respect to such End User. Appboy shall retain such Customer Data in an inactive status and can export that data to You upon request. The Customer Data of Inactive Users and Dormant Users can be merged by You into active profiles in Your discretion.

2.2 Customer Affiliates. Customer Affiliates may purchase and use subscriptions to the Appboy Services subject to the terms of this Agreement by executing Order Forms hereunder. This Agreement shall apply to such Customer Affiliates, and such Affiliates shall be deemed “You” as contemplated herein. Customer Affiliates may also use the Services purchased by You without signing an Order Form if You make certain employees of such Affiliate Users hereunder.

2.3 Riders for Certain Additional Services. If You desire to purchase certain marketing solutions, such as email, as part of the Appboy Services, You acknowledge that certain additional terms and conditions may apply to the provision of such additional services. You must agree in writing to the applicable Rider to this Agreement in connection with the purchase of such additional services.

3. USE OF THE APPBOY SERVICES

3.1 Appboy Responsibilities. Appboy shall: (a) ensure that the Appboy Services perform in material compliance with the Documentation; (b) use commercially reasonable efforts to make the Appboy Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which Appboy shall make commercially reasonable efforts to give at least twenty-four (24) hours’ notice and which Appboy shall schedule to the extent reasonably practicable from 10:00 PM until 7:00 AM, EST); or (ii) any unavailability caused by circumstances beyond Appboy’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Appboy employees), computer, telecommunications, internet service provider, Third-Party Providers, or hosting facility failures or delays involving hardware, software or power systems not within Appboy’s possession or reasonable control, and denial of service attacks; and (c) provide the Appboy Services in accordance with applicable laws and governmental regulations when used according to this Agreement.

3.2 Your Responsibilities. You are responsible for all actions taken by You or Your Users in Your account(s) and for Users’ compliance with this Agreement. You shall: (a) have sole responsibility for the accuracy and legality of all Customer Data; (b) maintain a legally-adequate privacy policy on Your Customer Application(s); (c) obtain all necessary rights, releases and consent to allow Customer Data, including Personal Information, to be collected, used and disclosed in the manner contemplated by this Agreement; (d) ensure that any user IDs, passwords, and other access credentials for the Appboy Services are kept strictly confidential and not shared with any unauthorized person; (e) promptly notify Appboy of any breach of security or unauthorized use of its account; (f) use commercially reasonable attempts to comply with requests made by Appboy to update various features or functionalities within the Appboy Services to optimize performance of the Appboy Services to customers generally; (f) comply with all applicable local, state, federal and foreign laws in using the Appboy Services; and (h) provide notice and obtain any legally required consents for the use of tracking technologies used by the Services in creating End User profiles. Appboy may, in its reasonable discretion, refuse to distribute Messages where the content of the Message, or the delivery of such Message to the recipient is, in Appboy’s reasonable opinion, unlawful. Notwithstanding the foregoing, Appboy has no obligation to review message content, or recipient addresses.

3.3 Use Guidelines. You shall use the Appboy Services solely for Your and Your Affiliates business purposes as contemplated by this Agreement and shall not: (a) license, sell, resell, lease, transfer, distribute, or otherwise commercially exploit or make the Appboy Services available to any third party; (b) send via or store within the Appboy Services unlawful, offensive or tortious material, including, without limitation, hate speech or discriminatory content; (c) imitate or impersonate another person or his, her or its email or other address or contact information; (d) create false accounts for the purposes of sending unsolicited messages (spam); or (e) send messages to individuals who have asked not to receive future messages from You (opted out); (f) send via, upload to, or store within the Appboy Services any Malicious Code; (g) interfere with or disrupt the integrity or performance of the Appboy Services or the data contained therein; or (h) attempt to gain unauthorized access to the Appboy Services or its related systems or networks. Any use of the Appboy Services by You or Users that, in Appboy’s reasonable judgment, imminently threatens the security, stability, integrity or availability of the Appboy Services, or otherwise harms other customers or third parties, may result in immediate suspension of the Appboy Services, however Appboy will use commercially reasonable efforts under the circumstances to notify You in advance of such suspension and provide You with an opportunity to correct Your usage prior to any such suspension. Appboy will have no liability for any such suspension made in good faith. However, unless this Agreement has been terminated, Appboy will cooperate with You to restore access to the Appboy Services once it verifies that You have resolved the condition requiring suspension.

3.4 Protection of Customer Data. Appboy will maintain administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use modification or disclosure of Customer Data by Appboy personnel except (a) to provide the Services (including the provision of feedback to You concerning Your use of the Appboy Services) and prevent or address service or technical problems, (b) as compelled by law in accordance with the Confidentiality section below, or (c) as expressly permitted in writing by You.

3.5 Legal Requirements. The Appboy Services may not be used to establish an individual’s eligibility for credit, employment or insurance. You shall not submit to the Appboy Services or use the Appboy Services to collect, store or process Restricted Information.

3.6 Third-Party Provider Interaction. You may, at Your sole discretion, enable the Appboy Services to access Your Third-Party Provider accounts in connection with Your use of the Appboy Services.

4. FEES & PAYMENT

4.1 Appboy Services Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Appboy Services purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) other than as set forth herein, fees paid are non-refundable; and (iv) the Appboy Services purchased cannot be decreased during the relevant Subscription Term.

4.2 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced electronically (i) in advance for the Appboy Services, and (ii) monthly in arrears for excess usage, if applicable, and in both cases, in accordance with the applicable Order Form. You are responsible for maintaining complete and accurate billing and contact information within the Appboy Services.

4.3 Overdue Payments. Appboy may impose late fees as contemplated in each Order Form. If Your account is 30 days or more overdue, Appboy may, in addition to any of its other rights or remedies, upon written notice, suspend Your access to the Appboy Services until such amounts are paid in full. If such failure to pay has not been cured within 60 days of the due date, then upon written notice, Appboy may terminate this Agreement and any or all outstanding Order Forms in accordance with the Termination for Cause section below.

4.4 Payment Disputes. Appboy shall not exercise its rights under the “Overdue Payments” section above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.5 Taxes. Unless otherwise stated, Appboy’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use, sales or withholding taxes collected by any jurisdiction whatsoever (collectively, “ Taxes”). You are responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Appboy’s net income or property. If Appboy has the legal obligation to pay or collect Taxes for which You are responsible under this Section, the appropriate amount shall be invoiced to and paid by You, unless You provide Appboy with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. PROPRIETARY RIGHTS

5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Appboy reserves all rights, title and interest in and to the Appboy Services and You retain all rights to the Customer Application(s), including all related intellectual property rights therein and to any improvements, enhancements or updates thereto. No rights are granted to either party hereunder other than as expressly set forth herein.

5.2 Restrictions. You shall not (a) modify, copy or create derivative works based on the Appboy Services; (b) reverse engineer the Appboy Services; (c) alter, remove or suppress in any manner any copyright, trademark or other notices displayed by the Services; or (d) access the Appboy Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Appboy Services.

5.3 Customer Data. As between Appboy and You, You exclusively own all rights, title and interest in and to all Customer Data. Notwithstanding the foregoing, during the term hereof, You grant to Appboy a worldwide, non-exclusive, royalty-free license to access Customer Data to aggregate or compile such Customer Data with other data, including the customer data of other Appboy customers, so long as such aggregation or compilation omits any Personal Information or any other data that would enable the identification of You, Your End Users, or any individual, company or organization (“ Aggregated Data”), solely to (x) provide the Services, (y) to obtain feedback on and improve the Appboy Services, and (z) to provide consultative and analytical information to our customers generally. Appboy may create derivative works based on such Aggregated Data (“ Aggregated Data Reports”). Appboy shall own all right, title and interest in and to the Aggregated Data Reports.

5.4 Feedback. If You elect to provide any suggestions, comments, improvements, ideas or other feedback relating to the Appboy Services to Appboy (collectively, “Feedback”), You acknowledge and agree that Appboy may incorporate into the Appboy Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any Customer Confidential Information contained in the Feedback.

5.5 Marketing Rights. Appboy may use Your name in any discussion of its current customers and in marketing materials, and, so long as Appboy complies with any Customer-provided trademark usage guidelines, Appboy may use Your logo in its marketing materials to promote the relationship between Appboy and You. In addition, You shall, upon reasonable notice, and at mutually convenient times, participate in customer forums, marketing events or such other branded content in the form of case studies, blog posts, etc. as shall be mutually agreed between the parties.

6. CONFIDENTIALITY

6.1 Definition of 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”) that is marked or designated as “Confidential” and/or “Proprietary”, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, all information and data relating to the provision of the Services, a party’s business and marketing plans, technology and technical information, product designs, and business processes. The terms and conditions of this Agreement are the Confidential Information of both parties, the pricing and other terms reflected in all Order Forms hereunder are the Confidential Information of Appboy, and the Customer Data is the Confidential Information of You. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or any third party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality. The Receiving Party shall use 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) (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents (“Representatives”) who need such access for purposes consistent with this Agreement and who are subject to written confidentiality obligations with the Receiving Party containing protections no less stringent than those contained herein. Other than as otherwise provided herein, neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Representatives without the other party’s prior written consent.

6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations set forth herein, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

6.5 Survival. The obligation of Confidentiality set forth in this Section 6 shall survive termination or expiration of this Agreement.

7. WARRANTIES & DISCLAIMERS

7.1 Appboy Warranties. Appboy represents and warrants that the functionality and overall security of the Appboy Services will not be materially decreased during a Subscription Term. In the event of a breach of this Your exclusive remedy shall be as provided in the “Termination for Cause” section below.

7.2 Disclaimer. EXCEPT as otherwise specifically provided herein, TO THE MAXIMUM EXTENT PERMITTED BY LAW, APPBOY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR STATEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY APPBOY. APPBOY MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY SOFTWARE USED BY YOU IN CONNECTION WITH THE APPBOY SERVICES. APPBOY WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM OR ON BEHALF OF YOU IN BREACH OF THIS AGREEMENT.

8. MUTUAL INDEMNIFICATION

8.1 Indemnification by Appboy. Appboy shall defend, and subject to Section 9.1 below, hold You harmless against any claims, demands, suits or proceedings (“ Claims”) made or brought against You by a third party alleging (a) that Your use of the Appboy Services within the scope of this Agreement infringes the intellectual property rights of such third party, (b) a breach by Appboy of its confidentiality obligations under Section 6 hereof; or (c) gross negligence or willful misconduct by Appboy, and will indemnify You from any damage, costs (including reasonable attorneys’ fees), or judgments finally awarded against You incurred in connection with a Claim. If Appboy receives information about an infringement claim related to the Appboy Services, Appboy shall in its discretion and at no cost to You (i) modify the Appboy Services so that they no longer infringe, without breaching Appboy’s warranties under “Appboy Warranties” above, (ii) obtain a license for Your continued use of the Appboy Services in accordance with this Agreement, or (iii) terminate Your subscriptions for the Appboy Services upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. Appboy shall have no obligation to indemnify You to the extent any Claim arises from Your use of any Third Party Provider’s services, or Your use of the Appboy Services in breach of this Agreement.

8.2 By You. You shall defend, and subject to Section 9.1 below, hold Appboy harmless against any Claims made or brought against Appboy by a third party alleging (a) violation of applicable law arising from Your use of the Appboy Services in breach of this Agreement; (b) that Customer Data infringes the intellectual property rights of a third party; (c) a breach by You of Your confidentiality obligations under Section 6 hereof, or (d) gross negligence or willful misconduct by You, and will indemnify Appboy from any damage, costs (including reasonable attorneys’ fees), or judgments finally awarded against Appboy incurred in connection with a Claim.

8.3 Procedure. As an express condition to the indemnifying party’s obligation under this Section 8, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; provided, that failure to notify shall not relieve a party of its indemnification obligations unless the indemnifying party has been materially prejudiced thereby; (b) give the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle a Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim.

8.4 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this section.

9. LIMITATION OF LIABILITY

9.1 Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH BELOW, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS HEREUNDER.

9.2 Exceptions. NOTWITHSTANDING THE FOREGOING, THE PARTIES’ INDEMNIFICATION OBLIGATIONS FOR THE FOLLOWING THIRD PARTY CLAIMS SHALL BE UNCAPPED:
(A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND
(B) INTELLECTUAL PROPERTY INFRINGEMENT.

9.3 Exclusion of Indirect Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10. TERM & TERMINATION

10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have terminated or expired pursuant to the terms hereof.

10.2 Term of Subscriptions. Subscriptions to the Appboy Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. Appboy reserves the right to increase the fees on renewal by giving You at least sixty (60) days’ notice of such price increase; provided, however, that any such price increase shall not exceed 7% above the price that was in effect for the same products and services in the immediately preceding term.

10.3 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by You, Appboy shall refund You any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by You shall not relieve You of the obligation to pay any fees accrued or payable to Appboy prior to the effective date of termination. Upon any termination for cause by Appboy, You shall remain obligated to pay all fees owed for the remainder of the Subscription Term.

10.4 Customer Data Deletion. Following the termination or expiration of this Agreement, Appboy shall terminate provision of the Appboy Services to You, and You shall have 30 days to access Your account and download/export Customer Data. Upon expiration of such 30-day period, Appboy shall convert Your account to an inactive status. Appboy shall have no obligation to maintain any Customer Data after 60 days and shall securely overwrite or delete Customer Data 90 days following any such termination.

10.5 Surviving Provisions. Section 1 and Sections 6 through 11 shall survive any termination or expiration of this Agreement.

11. GENERAL PROVISIONS

11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.3 Beta Services. From time to time, Appboy may invite You to try Beta Services. You may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Appboy Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Appboy may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Appboy shall have no liability for any harm or damage arising out of or in connection with a Beta Service.

11.4 Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. You and Appboy each represents that it is not named on any U.S. government denied-party list. You shall not, and shall not permit any User to, access or use any Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

11.5 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restrictions, You will use reasonable efforts to promptly notify Appboy’s Legal Department at [email protected](mailto:[email protected]).

11.6 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Legal Notices shall be identified as Legal Notices. Notices to Appboy shall be addressed to the attention of its General Counsel. Notices to You shall be addressed to Your signatory of this Agreement unless otherwise designated below.

11.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.8 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

11.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party 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.

11.10 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules. The state and federal courts located in the State of New York, District of Manhattan, New York City, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

11.11 Entire Agreement. This Agreement is the entire agreement between the parties regarding Your use of the Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms and Statements of Work) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, and (3) the body of this Agreement. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.

You are viewing Braze MSA (prior to September 1st, 2017)

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF THE APPBOY SERVICES.

BY USING THE APPBOY SERVICES, YOU ARE AGREEING TO COMPLY WITH THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. DO NOT USE THE APPBOY SERVICES IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT.

1. DEFINITIONS

“Affiliate” shall mean, with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Appboy Code” shall mean the code developed and provided by Appboy to You for use in connection with the Appboy Services, which may include SDK(s) or other similar code developed and provided by Appboy.

“Appboy Services” or “Services” shall mean the specific proprietary software-as-a-service product of Appboy, specified in Your Order Form, including any related Appboy Code and Documentation. Appboy Services exclude any Beta Services.

“Beta Services” shall mean Appboy Services that are not generally available to customers.

“Confidential Information” shall have the meaning set forth in Section 6.

“Customer Application” shall mean Your mobile applications or web domains, as made available to your End Users.

“Customer Data” shall mean all electronic data or information submitted by or on behalf of You to, or collected and processed by, the Appboy Services.

“Data Points” shall refer to a billable unit of use of the Appboy Services, measured by a session start, session end, custom event or purchase recorded, as well as any attribute set on an End User profile. Data and events automatically collected by the Appboy Services including, for example, push tokens, device information, location data and all campaign engagement tracking events, such as email opens and push notification clicks, are not counted as Data Points. For clarity, the setting of an End User’s profile information at one point in time shall count as a single Data Point.

“Documentation” shall mean the online Documentation for the Appboy Services, accessible via https://www.appboy.com, as updated from time to time.

“Dormant User” shall mean an End User who has not recorded a session in a Customer Application nor been messaged or updated by You in the past twelve (12) months.

“End User” shall mean any end user of a Customer Application.

“Inactive User” shall mean any End User who is not reachable by You and who, for the past six (6) months (i) has not recorded a session in a Customer Application, (ii) has not been updated by You, and (iii) has not been Messaged.

“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Message” shall mean any communication with End Users made by or on behalf of You directly or indirectly through the Appboy Services.

“Monthly Active Users or MAUs” shall mean the number of End Users who have recorded a session in a Customer Application or website in the previous thirty (30) days, calculated nightly with a rolling 30-day window as set forth on an Order Form.

“Order Form” shall mean the ordering documents for Your purchases of Services from Appboy that are executed hereunder by the parties from time to time, including any supplements or addenda thereto.

“Personal Information” shall mean any information relating to an identified or identifiable person where such data is submitted to the Appboy Services as Customer Data.

“Restricted Information” shall mean: (i) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended “ HIPAA”), or similar information under other comparable laws or regulations; or (iii) financial account numbers (including without limitation, credit or debit card numbers, or any related security codes or passwords, bank account information, or Non-Public Information (as defined in the Gramm-Leach-Bliley Act of 1999, as amended “ GLBA”), or similar information under other comparable laws or regulations.

“Start Date” shall mean the date on which Appboy shall make the Appboy Services available to You as set forth in an applicable Order Form.

“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.

“Term” shall have the meaning set forth in Section 10.1.

“Third Party Providers” shall mean a third-party provider whose service or functionality interoperates with the Appboy Services, such as Google, Facebook, Apple, Microsoft or Amazon.

“User” shall mean an individual who is authorized by You to use the Appboy Services, for whom You have ordered the Appboy Services, and to whom You (or Appboy, at Your request) has supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with whom You transacts business.

2. APPBOY SERVICES

2.1 Provision of Appboy Services. Appboy shall make the Appboy Services available to You pursuant to this Agreement and all Order Forms during a Subscription Term. Your purchase of Appboy Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments made by Appboy regarding future functionality or features. Appboy reserves the right to reclassify an End User as an Inactive User or as Dormant, as applicable, and to archive Customer Data with respect to such End User.

2.2 Your Affiliates. Your Affiliates may purchase and use subscriptions to the Appboy Services subject to the terms of this Agreement by executing Order Forms hereunder. This Agreement shall apply to such Affiliates, and such Affiliates shall be deemed “You” as contemplated herein.

2.3 Riders for Certain Additional Services. If You desire to purchase certain marketing solutions, such as email, as part of the Appboy Services, You acknowledges that certain additional terms and conditions may apply to the provision of such additional services. You must execute an Order Form containing a Rider to this Agreement in connection with the purchase of such additional services.

3. USE OF THE APPBOY SERVICES

3.1 Appboy Responsibilities. Appboy shall: (a) use commercially reasonable efforts to ensure that the Appboy Services perform in material compliance with the Documentation; (b) use commercially reasonable efforts to make the Appboy Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which Appboy shall make good faith efforts to give at least twenty-four (24) hours’ notice provided via email or through the Appboy Services and/or by other means, and which Appboy shall schedule to the extent reasonably practicable from 10:00 PM until 7:00 AM, EST); or (ii) any unavailability caused by circumstances beyond Appboy’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Appboy employees), computer, telecommunications, internet service provider, Third-Party Providers, or hosting facility failures or delays involving hardware, software or power systems not within Appboy’s possession or reasonable control, and denial of service attacks; and (c) provide the Appboy Services in accordance with applicable laws and governmental regulations when used according to this Agreement and the Documentation.

3.2 Your Responsibilities. You are responsible for all activities that occur in Your account(s) and for Users’ compliance with this Agreement. You shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) maintain a legally-adequate privacy policy on Your Customer Applications and provide all required disclosures to Your End Users; (c) obtain all necessary rights, releases and consent to allow Customer Data, including Personal Information, to be collected, used and disclosed in the manner contemplated by this Agreement; (d) ensure that any user IDs, passwords, and other access credentials for the Appboy Services are kept strictly confidential and not shared with any unauthorized person; (e) promptly notify Appboy of any breach of security or unauthorized use of Your account; (f) use commercially reasonable attempts to comply with requests made by Appboy to update various features or functionalities within the Appboy Services to optimize performance of the Appboy Services to customers generally; and (g) comply with all applicable local, state, federal and foreign laws and applicable Third Party Provider terms of service in using the Appboy Services. You understand and acknowledge that: (i) Appboy may, in its reasonable discretion, refuse to distribute any message content that Appboy reasonably believes is defamatory, infringing, or otherwise unlawful; (ii) Appboy may, in its reasonable discretion, refuse to distribute any messages to any recipient that Appboy reasonably believes is unlawful; and (iii) Appboy has no obligation to review message content, recipient addresses or other Customer Data. If Appboy refuses to send any message on the basis of either (i) or (ii) above, Appboy shall notify You of the reasons for any such refusal and work with You to address such issue(s).

3.3 Use Guidelines. You shall use the Appboy Services solely for your internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Appboy Services available to any third party, including providing directly or indirectly to any third party a time-share or subscription service or to function as a service bureau or application service provider, except as expressly contemplated by this Agreement; (b) publicly disseminate information regarding the performance of the Appboy Services (which is deemed Appboy’s Confidential Information); (c) send via or store within the Appboy Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (d) imitate or impersonate another person or his, her or its email or other address or contact information, (e) create false accounts for the purposes of sending unsolicited messages (spam), or (f) send messages to individuals who have asked not to receive future messages from You (opted out); (g) send via, upload to, or store within the Appboy Services any Malicious Code; (h) interfere with or disrupt the integrity or performance of the Appboy Services or the data contained therein; or (i) attempt to gain unauthorized access to the Appboy Services or its related systems or networks. Your or a User’s intentional violation of any of the foregoing, or any use of the Appboy Services by You or Users that in Appboy’s reasonable judgment imminently threatens the security, stability, integrity or availability of the Appboy Services, or otherwise harms other customers or third parties, may result in immediate suspension of the Appboy Services, however Appboy will use commercially reasonable efforts under the circumstances to provide You with an opportunity to correct Your usage prior to any such suspension. Appboy will have no liability for such suspension. However, unless this Agreement has been terminated, Appboy will cooperate with You to restore access to the Appboy Services once it verifies that You have resolved the condition requiring suspension.

3.4 Protection of Customer Data. Appboy will maintain administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use modification or disclosure of Customer Data by Appboy personnel except (a) to provide the Services (including the provision of feedback to You concerning your use of the Appboy Services) and prevent or address service or technical problems, (b) as compelled by law in accordance with the Confidentiality section below, or (c) as expressly permitted in writing by You. Appboy takes no responsibility and assumes no liability for any Customer Data other than its express security obligations in this Section, other than for its gross negligence or willful misconduct.

3.5 Legal Requirements.
3.5.1. Restricted Information. The Appboy Services may not be used for any purpose related to establishing an individual’s eligibility for credit, employment or insurance. You shall not submit to the Appboy Services or use the Appboy Services to collect, store or process Restricted Information.

3.5.2 Customer Applications. You shall not knowingly collect Personal Information of children under the age of 13. If the Customer Application is developed, marketed, advertised or directed to children under 13, or if the Customer Application collects Personal Information of children under 13, You represent that it has parental consent to collect such Personal Information of children under 13. In the event that You have not directed any Customer Application to children under 13, if You nonetheless have actual knowledge that any Personal Information of children under 13 has been collected by any Customer Application that uses the Appboy Services, You shall immediately delete such Personal Information from the Appboy Services if You have not obtained all consents as required by applicable law.

3.5.3 Cookies and Tracking Technologies. To the extent the Appboy Services use cookies or other tracking technologies, You shall be solely responsible (i) for assessing whether such technologies can be used in compliance with applicable legal requirements, and (ii) for providing notice and/or obtaining consent, as may be required by law, for such use of cookies and/or other tracking technologies. Appboy disclaims any liability to You or any third party arising from Your use of any cookies and/or tracking technologies.

3.6 Third-Party Provider Interaction. If applicable, You shall enable the Appboy Services to access Your Third-Party Provider accounts and/or any websites operated by or on behalf of You with respect to which You are using the Appboy Services. Subject to the terms of this Agreement, You acknowledge and agree that Appboy may access, collect, process, and/or store information or content from such Third-Party Provider accounts and/or websites in connection with providing the Appboy Services. Except for Appboy’s obligations with respect to Customer Data under this Agreement, Appboy shall not be responsible or liable for: (i) any content provided by You or Your End Users to any Third-Party Provider or other website, and any content accessed by You, Your End Users, or any third party from any Third-Party Provider or other website, (ii) any interactions or communications between You and/or Your End Users and any third parties through any Third-Party Provider or other websites, or (iii) any transactions relating to a separate agreement or arrangement between You or Your End Users and any Third-Party Provider or website.

4. FEES & PAYMENT

4.1 Appboy Services Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified in an Order Form, (i) fees are based on the Appboy Services purchased and not actual usage; (ii) payment obligations are non-cancelable; (iii) fees paid are non-refundable; and (iv) the Appboy Services purchased cannot be decreased during the relevant Subscription Term.

4.2 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced electronically (i) in advance for the Appboy Services; and (ii) monthly in arrears for excess usage, if applicable, and in both cases, in accordance with the applicable Order Form. You shall pay invoices as stated in such Order Form. You are responsible for maintaining complete and accurate billing and contact information within the Appboy Services.

4.3 Overdue Payments. Appboy may impose late fees as contemplated in each Order Form. If Your account is 30 days or more overdue, Appboy may, in addition to any of its other rights or remedies, upon written notice, suspend Your access to the Appboy Services until such amounts are paid in full. If such failure to pay has not been cured within 60 days of the due date, then upon written notice, Appboy may terminate this Agreement and any or all outstanding Order Forms in accordance with the Termination for Cause section below.

4.4 Payment Disputes. Appboy shall not exercise its rights under the “Overdue Payments” section above if You are disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

4.5 Taxes. Unless otherwise stated, Appboy’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use, sales or withholding taxes collected by any jurisdiction whatsoever (collectively, “ Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder, excluding taxes based on Appboy’s net income or property. If Appboy has the legal obligation to pay or collect Taxes for which You are responsible under this Section, the appropriate amount shall be invoiced to and paid by You, unless You provide Appboy with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. PROPRIETARY RIGHTS

5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Appboy reserves all rights, title and interest in and to the Appboy Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

5.2 Restrictions. You shall not (a) modify, copy or create derivative works based on the Appboy Services; (b) frame or mirror any content forming part of the Appboy Services, other than on Your own intranets or otherwise for Your own internal business purposes; (c) reverse engineer the Appboy Services; (d) alter, remove or suppress in any manner any copyright, trademark or other notices displayed by the Services; or (e) access the Appboy Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Appboy Services.

5.3 Customer Data. As between You and Appboy, You exclusively own all rights, title and interest in and to all Customer Data. Notwithstanding the foregoing, You grant to Appboy a worldwide, non-exclusive, royalty-free license to aggregate or compile Customer Data with other data, including the customer data of other Appboy customers, so long as such aggregation or compilation omits any Personal Information or any other data that would enable the identification of You, Your End Users, or any individual, company or organization (“ Aggregated Data”), solely to (x) provide the Services, (y) to obtain feedback on and improve the Appboy Services, and (z) to provide consultative and analytical information to our customers generally. Appboy shall have a worldwide, perpetual, royalty-free license to use, modify, distribute and create derivative works based on such Aggregated Data, including all reports, statistics or analyses created or derived therefrom (“ Aggregated Data Reports”). Appboy shall own all right, title and interest in and to the Aggregated Data Reports.

5.4 Feedback. If You elects to provide any suggestions, comments, improvements, information, ideas or other feedback relating to the Appboy Services to Appboy (collectively, “Feedback”), You grant to Appboy a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Appboy Services any such Feedback without any obligation, payment, or restriction based on intellectual property rights or otherwise, excluding any of Your Confidential Information contained in the Feedback.

5.5 Improvements and Customizations.

5.5.1 By Appboy. Appboy shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Appboy Services or any new programs, upgrades, modifications or enhancements developed by Appboy in connection with providing the Appboy Services to You, even when refinements and improvements result from Your request.

5.5.2 By You. You shall own all rights, title and interest, including all intellectual property rights in and to any customizations, external dashboards, and other functionality that is built in Your systems, but is external to the Appboy Services. For clarity, such customizations may interoperate with the Appboy Services but do not on their own include or in any way incorporate any Appboy Confidential Information or components of the Appboy Services.

5.6 Pre-Existing Intellectual Property. All intellectual property rights owned by either party prior to the Effective Date, or execution of an applicable Order Form, are and will remain the sole and exclusive property of that party (the “ Pre-existing IP”). For avoidance of doubt, Pre-existing IP shall also include any intellectual property rights created independently by a party during a Subscription Term.

5.7 Publicity; Trademarks. Neither party may issue press releases or any other public announcement of any kind relating to this Agreement without the other party’s prior written consent; provided, however, that You hereby consent to the use by Appboy of Your name and logo in a published listing of Appboy’s customers, for use in Appboy marketing materials, on Appboy’s website and in connection with presentations, proposals and promotional materials and activities of Appboy.

5.8 Federal Government End Use Provisions. Appboy provides the Appboy Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Appboy Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data-Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Appboy to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

6. CONFIDENTIALITY

6.1 Definition of 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”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall 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.

6.2 Confidentiality. The Receiving Party shall use 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) (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations set forth herein, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

7. WARRANTIES & DISCLAIMERS

7.1 Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of each party, enforceable in accordance with its terms.

7.2 Appboy Warranties. Appboy represents and warrants that: (a) the functionality of the Appboy Services will not be materially decreased during a Subscription Term; and (b) the overall security of the Appboy Services shall not be materially reduced during a Subscription Term. For any breach of a warranty in this Section 7.2, Your exclusive remedy shall be as provided in the “Termination for Cause” section below.

7.3 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, APPBOY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY APPBOY. APPBOY MAKES NO WARRANTY OF ANY KIND TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY THIRD-PARTY SOFTWARE USED BY YOU IN CONNECTION WITH THE APPBOY SERVICES. APPBOY WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM YOU IN BREACH OF THIS AGREEMENT.

8. MUTUAL INDEMNIFICATION

8.1 Indemnification by Appboy. Appboy shall defend, and subject to Section 9.1 below, hold You harmless against any claims, demands, suits or proceedings (“ Claims”) made or brought against You by a third party, and will indemnify You from any damage, costs (including reasonable attorneys’ fees), or judgments finally awarded against You incurred in connection with a Claim alleging (a) that Your use of the Appboy Services within the scope of this Agreement infringes the intellectual property rights of such third party, (b) a breach by Appboy of its confidentiality obligations under Section 6 hereof; or (c) gross negligence or willful misconduct by Appboy; provided, however, that Appboy shall have no such indemnification obligation under subsection (a) above to the extent such infringement: (i) relates to use of the Appboy Services in combination with other software, data products, processes or materials not provided by Appboy and the infringement would not have occurred but for the combination; (ii) arises from or relates to modifications to the Appboy Services not made or authorized by Appboy; or (iii) where You continue the activity or use constituting or contributing to the infringement after a written request by Appboy to cease such use or activity. If Appboy receives information about an infringement claim related to the Appboy Services, Appboy may in its discretion and at no cost to You (i) modify the Appboy Services so that they no longer infringe, without breaching Appboy’s warranties under “Appboy Warranties” above, (ii) obtain a license for Your continued use of the Appboy Services in accordance with this Agreement, or (iii) terminate Your subscriptions for the Appboy Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of the terminated subscriptions. Appboy shall have no obligation to indemnify You to the extent any Claim arises from Your use of any Third Party Provider’s platform or services or Your use of the Appboy Sevices in breach of this Agreement.

8.2 By You. You shall defend, and subject to Section 9.1 below, hold Appboy harmless against any Claims made or brought against Appboy by a third party, and will indemnify Appboy from any damage, costs (including reasonable attorneys’ fees), or judgments finally awarded against Appboy incurred in connection with a Claim alleging (a) violation of applicable law arising from Your use of the Appboy Services in breach of this Agreement; (b) that Customer Data infringes the intellectual property rights of a third party; (c) a breach by You of Your confidentiality obligations under Section 6 hereof, or (d) Your gross negligence or willful misconduct.

8.3 Procedure. As an express condition to the indemnifying party’s obligation under this Section 8, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; (b) give the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle a Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim.

8.4 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this section.

9. LIMITATION OF LIABILITY

9.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS HEREUNDER.

9.2 Exceptions. NOTWITHSTANDING THE FOREGOING, LIABILITIES ARISING FROM THE PARTIES’ INDEMNIFICATION OBLIGATIONS FOR THE FOLLOWING THIRD PARTY CLAIMS SHALL BE UNCAPPED:
(A) LIABILITIES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND
(B) LIABILITIES ARISING FROM ALLEGATIONS OF INTELLECTUAL PROPERTY INFRINGEMENT.

9.3 Exclusion of Indirect Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10. TERM & TERMINATION

10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have terminated or expired pursuant to the terms hereof.

10.2 Term of Subscriptions. Subscriptions to the Appboy Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. Appboy reserves the right to increase the fees on renewal by giving You at least sixty (60) days’ notice of such price increase; provided, however, that any such price increase shall not exceed 7% above the price that was in effect for the same products and services in the immediately preceding term.

10.3 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by You, Appboy shall refund to You any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by You shall not relieve You of the obligation to pay any fees accrued or payable to Appboy prior to the effective date of termination. Upon any termination for cause by Appboy, You shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.

10.4 Effect of Termination. Following the termination or expiration of this Agreement, Appboy shall terminate provision of the Appboy Services to You, and You shall have 30 days to access Your account and download/export Customer Data. Upon expiration of such 30-day period, Appboy shall convert Your account to an inactive status. Appboy shall have no obligation to maintain any Customer Data after 60 days and shall securely overwrite or delete Customer Data 90 days following any such termination.

10.5 Surviving Provisions. Section 1 and Sections 6 through 11 shall survive any termination or expiration of this Agreement.

11. GENERAL PROVISIONS

11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.3 Beta Services. From time to time, Appboy may invite You to try Beta Services. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Appboy Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Appboy may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Appboy shall have no liability for any harm or damage arising out of or in connection with a Beta Service.

11.4 Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. You and Appboy each represent that it is not named on any U.S. government denied-party list. You shall not, and shall not permit any User to, access or use any Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

11.5 Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from an Appboy employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restrictions, You will use reasonable efforts to promptly notify Appboy’s Legal Department at [email protected](mailto:[email protected]).

11.6 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Legal Notices shall be identified as Legal Notices. Notices to Appboy shall be addressed to the attention of its General Counsel. Notices to You shall be addressed to Your signatory of this Agreement unless otherwise designated below.

11.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.8 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

11.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party 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.

11.10 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules. The state and federal courts located in the State of New York, District of Manhattan, New York City, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

11.11 Entire Agreement. This Agreement is the entire agreement between the parties regarding Your use of the Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms and Statements of Work) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.