Thank you for signing up for a subscription with Mutiny HQ Corporation. (“Mutiny”, “we” or “us”). By placing an order, clicking to accept these Terms of Service (“Terms”), or using or accessing any Mutiny Service (as defined below) or related services, you agree to be bound by these Terms. If you are using a Mutiny Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to these Terms. You represent and warrant that you have the legal power and authority to enter into these Terms and that, if the Customer is an entity, these Terms and each Order Form (as defined below) is considered entered into by an employee or agent with all necessary authority to bind that entity to these Terms. These Terms are effective as of November, 2022. Mutiny may modify this Agreement at any time, in its sole discretion. If Mutiny does so, it will let you know by posting the modified Agreement in the Mutiny Services.
1. OVERVIEW OF THE MUTINY PLATFORM
Mutiny provides a suite of products that allow subscribers to test, personalize, and analyze the experiences they deliver through a variety of platforms, such as web and landing pages. To accomplish this, Customer first installs Mutiny Code (as defined below) for the relevant platform, and then uses the tools within the applicable Mutiny Service to select Content (as defined below) to personalize. Based on these selections, variations of Customer Properties (as defined below) are presented to Visitors (as defined below). The Service-specific terms of service and the applicable documentation provide additional details about each Mutiny Service.
DEFINITIONS. The following terms used in the Terms have the following meanings:
“Aggregate/De-Identified Data” means: (i) de-identified Customer Data aggregated solely for the uses set forth in Section 4.2; and (ii) and de-identified, aggregate data regarding use of the Mutiny Service.
“Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who (i) are authorized by Customer to use the Mutiny Service; and (ii) are acting for Customer’s benefit and on its behalf.
“Content” Has the meaning set forth in Section 1.5.
“Customer Data” means: (i) means text, images, videos or other content for the Customer Property that Customer selects for use with the Mutiny Service (“Content”); (ii) data uploaded, inputted or otherwise submitted by Customer to the Mutiny Service, including Third-Party Content; and (iii) the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the Mutiny Service, including any data specified in the Service-specific terms of service.
“Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under these Terms, that are identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
“Customer Property or Properties” means the (i) Customer Websites or (ii) other types of platforms or properties specified in the Order Form.
“Customer Websites” means the Customer web domains identified in an Order Form.
“Data Protection Laws” means any law, statute, regulation, order, guidance or directive which relates to the protection of individuals with regard to the processing of personal data.
“Order Form” means any Mutiny ordering documentation or online sign-up or subscription flow, that references these Terms.
“Mutiny Service” means (a) the specific proprietary software-as-a-service product(s) of Mutiny specified in an Order Form, (as defined below), (b) including any related Mutiny Code (as defined below) and (c) any related documentation.
“Mutiny Technology” means the Mutiny Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Mutiny Service), anything delivered as part of support or other services, and any updates, modifications, improvements, or derivative works of any of the foregoing, including as may incorporate any Feedback.
“Regulated Data” means: (i) any patient, medical, or other protected or regulated health information; (ii) any government IDs, financial information (including bank account or payment card numbers); or (ii) any other information subject to regulation or protection under specific laws or regulations (other than Data Protection Laws).
“Scope of Use” means the usage limits for the Mutiny Service included in the Order Form (including descriptions of packages and features). These may include: any limits on or Authorized Users; descriptions of product feature level; Customer Properties.
“Subscription Term” means the initial term for the subscription to the applicable Mutiny Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
“Third-Party Content” means content, data or other materials that Customer provides to the Mutiny Service from its third-party data providers, including through Add-Ons used by Customer.
“Visitor” means any end user of a Customer Property.
USE AND ACCOUNT REGISTRATION
Method of Use. To successfully implement the Mutiny Services, Customer agrees that it must first install the Mutiny Code for the relevant Customer Property.
Account Registration. Customer and its Authorized Users may need to register for a Mutiny account to access the Mutiny Service. Customer is responsible for ensuring that each Authorized User complies with the Agreement. Customer is fully and directly responsible and liable to Mutiny for any act or omission by an Authorized User in connection with their use of the Mutiny Services.
Use of Mutiny Services. Subject to all the terms and conditions of the Agreement, Mutiny grants Customer a right to access and use the Mutiny Service(s) solely for Customer’s internal business purposes. In addition to the access and use rights in this Section 3.1, Customer is granted a limited, worldwide, non-exclusive license to install and use the relevant Mutiny Code on the specified Customer Property and, in the case of Customer apps, to distribute the installed Mutiny Code with Customer apps.
General Restrictions. Customer must not (and must not allow any third-party) to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Mutiny Service to a third-party (except Authorized Users); (ii) incorporate the Mutiny Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as permitted in the Agreement; (iii) publicly disseminate information regarding the performance of the Mutiny Service (which is deemed Mutiny’s Confidential Information); (iv) modify or create a derivative work of the Mutiny Service, or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Mutiny Service, except to the extent expressly permitted by applicable law and then only with advance notice to Mutiny; (vi) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Mutiny Service, or configure the Mutiny Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees or otherwise interfere with, or disrupt the integrity or performance of the Mutiny Services, or any data or content contained therein or transmitted thereby; (vii) distribute any portion of the Mutiny Service other than the Mutiny Code installed in Customer Properties as specifically permitted in the Agreement; (viii) access the Mutiny Service or use any Confidential Information for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the Mutiny Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Mutiny’s prior written consent; (x) use the Mutiny Service to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Mutiny Service; or (x) remove or obscure any proprietary or other notices contained in the Mutiny Service, including in any reports or output obtained from the Mutiny Service.
Rights in Customer Data. With the exception of any Mutiny Technology, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all Content contained within them (excluding any Mutiny Technology). Customer hereby grants Mutiny a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary: (a) to provide the Mutiny Service and related services to Customer; and (b) as set out in Section 4.2 (Aggregate/De-Identified Data). For Content, this includes the right to publicly display and perform Content and the Customer Properties (including derivative works and modifications) as directed by Customer through the tools in the Mutiny Service.
AI Functionality - Aggregate/De-Identified Data. An integral part of the functionality of the Mutiny Services relies upon the use of Aggregate/De-Identified Data. Customer agrees that Mutiny has the right to generate Aggregate/De-Identified Data and that Aggregate/De-Identified Data is Mutiny Technology, which Mutiny may use for its business purpose during or after the term of the Agreement. For clarity, Mutiny will only disclose Aggregate/De-Identified Data externally in a de-identified form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Notwithstanding anything in this Agreement to the contrary, Mutiny will not sell Aggregate/De-Identified Data to third parties. Customer is not responsible for Mutiny’s use of Aggregate/De-Identified Data.
Data Security. Mutiny agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized access, disclosure, and modification. Mutiny’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized access, disclosure and modification. For more information regarding existing security measures, see https://support.mutinyhq.com/en/articles/3952090-data-protection-and-ccpa-gdpr-compliance.
Storage. Mutiny does not provide an archiving service. Mutiny expressly disclaims all obligations with respect to data storage.
6. MUTINY TECHNOLOGY
Ownership and Reservation of Rights. Customer acknowledges that it is obtaining only a limited right to use the Mutiny Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, nothing in the Agreement or the performance thereof will operate to grant Customer any right, title or interest, whether by implication, estoppel or otherwise, in or to the Mutiny Technology. Customer agrees that Mutiny (or its suppliers) retains all rights, title and interest (including all intellectual property rights) in and to all Mutiny Technology (which is deemed Mutiny’s Confidential Information) and any and all Updates, improvements, modifications or derivative works to the foregoing and reserves any licenses not specifically granted in the Agreement. Other than the Mutiny Code, the Mutiny Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Mutiny Service. Customer will not take any actions inconsistent with Mutiny’s ownership rights and agrees to take any and all actions and execute any and all documents necessary to give effect to this Section 6.1.
Updates. Mutiny may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to the Mutiny Services and may, in its discretion, make them available to Customer and its Authorized Users (collectively, “Updates”). Customer hereby acknowledges that such Updates may be required to use certain features or components of the Mutiny Services, and in order to be able to use such features, Customer consents to the automatic installation of the Updates.
Third-Party Software. The Mutiny Services may include, or may provide Customer with access to, software, source code or other technology licensed to Mutiny from third-parties, and which may be owned by such third-parties (collectively, “Third-Party Software”). Customer acknowledges and agrees that Third-Party Software is provided solely on an “AS IS” basis, and that Mutiny does not make any warranties or guarantees regarding Third-Party Software and is not responsible for the operation or failure of, or any errors or bugs in, any Third-Party Software.
Third-Party Services. Certain features and functionalities within the Mutiny Services, as Mutiny determines in its sole discretion, may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Mutiny Services. Customer hereby acknowledges and agrees that (i) Mutiny does not itself provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Mutiny Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto; and (ii) Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to utilize the Third-Party Services in connection with the Mutiny Services.
Feedback. Customer and its Authorized Users acknowledge that any comments, ideas, suggestions and other feedback regarding the Services that Customer and its Authorized Users provide to or share with Mutiny in any format (the “Feedback”), will be the sole and exclusive property of Mutiny. Customer and its Authorized Users hereby irrevocably transfer and assign to Mutiny and agree to irrevocably assign and transfer to Mutiny all of Customer’s and its Authorized Users’ rights, title, and interests in and to all Feedback, including all Intellectual Property Rights therein.
7. SUPPORT SERVICES
Mutiny makes implementation, onboarding, and other support services available to Customer as specified in Customer’s Order Form. Any support services are subject to these Terms, including payment of any Fees.
8. FEES AND PAYMENT
Fees. As consideration for the Mutiny Services, Customer agrees to pay the fees specified in the Order Form (“Fees”). Unless expressly provided in the Agreement, all Fees are non-refundable. All Fees are to be paid in US Dollars and may be remitted by ACH, wire transfer, or other form of payment mutually acceptable to both parties. All amounts not paid when due under these Terms will accrue interest daily (without the requirement of a notice) at the lower of: (a) 1.5% per month or (b) the highest rate permissible by law, until the unpaid balance is paid in full. Customer understands and agrees that Customer is solely responsible for any costs incurred by Customer with respect to Customer’s use of any Third-Party Services in connection with Customer’s access to and use of the Mutiny Services.
Taxes. All amounts payable under these Terms are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Customer will pay all taxes and duties of any kind assessed in connection with the Fees paid or Services received under the Agreement, except for taxes payable on Mutiny’s net income.
9. TERM AND TERMINATION
Term. This Agreement is effective as of the date of the Customer’s signature, below, and will continue through the end of the Subscription Term, (the “Initial Term”), unless terminated earlier under Section 9.3.
Subscription Term and Renewals. Unless either Party has given written notice of its intent not to renew the Agreement at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term, the Agreement will automatically renew for subsequent annual terms of 12 months each (each a “Renewal Term”). Customer notice of non-renewal should be sent to email@example.com. Pricing for any Renewal Term will be at Mutiny’s then-applicable rates at a rate mutually agreed by the Parties.
Termination for Cause. Either Party may terminate these Terms upon written notice if: (a) the other Party breaches any material term of these Terms and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching Party or, if the cure is not capable of completion within such 30 day period, if the breaching Party fails to commence and diligently pursue such cure within the 30 day period following receipt of notice of breach; or (b) the other Party commences a voluntary or involuntary case in bankruptcy or similar proceedings or makes an assignment of all or substantially all of its assets for the benefit of creditors.
Effect of Termination. Upon any expiration or termination of the Agreement for any reason: (i) all rights granted to Customer terminate and it must promptly: (a) stop use of the Mutiny Service(s) (including any related Mutiny Technology); (b) stop distributing any Mutiny Code installed on its Customer Properties; (c) delete (or, at Mutiny’s request, return) any and all copies of the Mutiny Code, any Mutiny documentation, passwords or access codes, and any other Mutiny Confidential Information in Customer’s possession, custody, or control; and (d) pay to Mutiny all accrued amounts due and payable through end of the then Current Initial Term or Renewal Term.
Survival. The following Sections survive any expiration or termination of the Agreement: 1 (Definitions); 2 (Account Registration and Use); 3.3 (General Restrictions); 4.1 (Rights in Customer Data); 4.2 (Aggregate/De-Identified Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); and 15 (General).
10. CONFIDENTIAL INFORMATION
Confidentiality Obligation. Each Party (as the receiving Party) must: (i) hold in confidence and not disclose the other Party’s Confidential Information to third parties except as permitted by the Agreement; and (ii) only use the other Party’s Confidential Information to fulfill its obligations and exercise its rights under the Agreement. Each Party may share the other Party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Mutiny, includes the subcontractors referenced in Section 15.4), provided that the Party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than this Section.
Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving Party; (ii) was known by the receiving Party before it received the Confidential Information; (iii) is rightfully obtained by the receiving Party from a third-party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving Party without using the disclosing Party’s Confidential Information. A Party may also disclose the other Party’s Confidential Information to a Party’s advisors, attorneys, actual or bona-fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes, or to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other Party to obtain confidential treatment for the information.
11. REPRESENTATIONS AND WARRANTIES
Mutual Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into the Agreement and (ii) the execution, delivery and performance of the Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
By Mutiny. Mutiny represents and warrants that the Mutiny Services will (a) be provided in a professional and workmanlike manner and (b) will materially conform to any specifications expressly set out on the Order Form.
Mutual Indemnification. Each Party (an “Indemnifying Party'') indemnifies and agrees to defend and hold the other Party (an “Indemniﬁed Party”) and its trustees, oﬃcers, directors, employees, agents and aﬃliates from and against any and all third party claims, demands, suits, fees, judgments, damages, losses, costs and expenses (collectively, “Claims”), including reasonable attorneys’ fees and costs incurred in responding to such Claims, that the Indemniﬁed Party may suﬀer or incur proximately caused by: (a) Indemnifying Party’s gross negligence or willful misconduct; (b) Indemnifying Party’s breach of the Agreement or violation of any applicable law; or (c) content or services provided to the Indemniﬁed Party by the Indemnifying Party infringing or violating any patent, copyright, trademark, or other intellectual property right of a third party or misappropriating any trade secret, provided that no indemniﬁcation shall be available in the case of this clause 12(c) to the extent the infringement is caused by: (i) the use of the content or services in combination with other products or services in a way not contemplated by the Agreement, if the infringement would not have occurred but for such combination or (ii) an alteration or modiﬁcation of the content or services not directed or provided by or with the consent of the Indemnifying Party, if the infringement would not have occurred but for such alteration or modiﬁcation. If any portion of the Mutiny Services becomes, or in Mutiny’s opinion is likely to become, the subject of a claim of infringement, Mutiny will, at Mutiny’s sole option, either: (1) procure for Customer the right to continue using the Mutiny Services; (B) replace the Mutiny Services with non-infringing services which do not materially impair the functionality of the Mutiny Services; or (B) modify the Mutiny Services so that they become non-infringing. If the foregoing options are not available on commercially reasonable terms and conditions, Customer will have the option to terminate the Agreement.
Indemnification Procedure. If a Claim for indemniﬁcation is made under the Agreement, the Indemniﬁed Party will promptly notify the Indemnifying Party in writing of any such Claim and will cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party will control the defense and investigation of the Claim and will employ counsel of its choice that is reasonably acceptable to the Indemniﬁed Party to handle and defend the Claim, at the Indemnifying Party’s sole cost and expense. The Indemnifying Party may not settle any Claim in a manner that adversely aﬀects the Indemniﬁed Party’s rights without the Indemniﬁed Party’s prior written consent, not to be unreasonably withheld. The Indemniﬁed Party’s failure to perform any obligations under this Section 12.2 does not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of the failure. The Indemniﬁed Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
13. WARRANTY AND LIABILITY DISCLAIMERS
EXCEPT AS EXPRESSLY SET OUT IN SECTION 11.2, ALL MUTINY SERVICES AND MUTINY TECHNOLOGY ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND MUTINY DISCLAIMS AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT;
WARRANTIES THAT MUTINY TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS;
WARRANTIES THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS; OR
WARRANTIES THAT THE MUTINY SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE.
MUTINY DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND IS NOT RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL.
MUTINY IS NOT LIABLE FOR CLAIMS RELATED TO REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, OR FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT
Customer Properties or Third-Party Assets
MUTINY IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR:
ANY CUSTOMER PROPERTIES, THIRD-PARTY SERVICES, THIRD-PARTY CONTENT, OR NON-MUTINY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), OR
ACTS OR OMISSIONS OF CUSTOMER BASED UPON MUTINY SERVICES, INCLUDING CHANGES TO CUSTOMER PROPERTIES.
EACH THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS.
14. LIMITATIONS OF LIABILITY
EXCEPT FOR EACH PARTIES OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MUTINY BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.
MUTINY’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO MUTINY FOR THE APPLICABLE MUTINY SERVICE OR RELATED SERVICES IN THE SIX (6) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, MUTINY’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).
Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign the Agreement without the advance written consent of the other Party, except that Mutiny may assign the Agreement, without consent, to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign the Agreement except as expressly authorized under this Section 15.1will be void.
Notices. Any notice or communication under the Agreement must be in writing, addressed to the contact and address set out on the Order Form. Email communication is considered writing.
Publicity. Mutiny may use Customer’s name, logo, and marks (including marks on Customer Properties) (collectively referred to as “Customer’s Marks”) to identify Customer as a Mutiny customer on Mutiny’s website and other marketing materials. If Customer has approval rights, such approval will not be unreasonably withheld. Upon Customer’s request, Mutiny will cease using the Customer’s Marks.
Subcontractors. Mutiny may use subcontractors, vendors and Third Party Providers (collectively herein, “Subcontractors”) in connection with the performance of its obligations under the Agreement and permit such Subcontractors to exercise the rights granted to Mutiny. Mutiny remains responsible for the performance of each Subcontractor.
Independent Contractors. The Parties to the Agreement are independent contractors, and the Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither Party has the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
Severability. If any provision of the Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Agreement may otherwise remain in effect.
Governing Law. These Terms and all matters arising out of or relating to these Terms will be governed by the laws of the State of California, without regard to its conflict of laws provisions. Any legal action or proceeding relating to these Terms will be brought exclusively in the state or federal courts located in San Francisco, California. Mutiny and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
Force Majeure. Neither Party will be responsible for any failure or delay in its performance under the Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, communications failure or degradation, material changes in law, war, terrorism, riot, or acts of God.
Entire Agreement. This Agreement represents the Parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Mutiny Technology or any other subject matter covered by the Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are expressly rejected and have no legal effect.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Digital signatures (including .pdf, .jpeg, .gif or other e-signatures) are considered originals signatures.
If Mutiny Processes Customer Data on behalf of Customer that is personal data, as that term is defined in the GDPR (“GDPRPersonal Data”), this Section shall apply. Capitalized terms in this Section not defined by the Agreement have the meaning given to them in the EU General Data Protection Regulation (2016/679) (“GDPR”), and such definitions apply irrespective of whether or not GDPR is applicable. When Mutiny Processes GDPR Personal Data it shall: (i) only Process GDPR Personal Data in accordance with Section 4.1– 4.2; (ii) ensure all persons authorized to Process GDPR Personal Data are committed to confidentiality; (iii) secure GDPR Personal Data in accordance with Section 4.3; (iv) only engage subprocessors in accordance with Section 15.4. Mutiny shall provide Customer notice of any new subprocessors by updating its list of subprocessors found at www.mutinyhq.com/terms/subprocessors and allow Customer five (5) days to object. Mutiny shall remain responsible to Customer for its subprocessor’s failure to perform their obligations with respect to GDPR Personal Data in accordance with applicable laws; (v) notify Customer without undue delay upon becoming aware of a GDPR Personal Data Breach in accordance with applicable laws; (vi) assist Customer with any individual rights requests insofar as commercially practicable. If a Data Subject sends a request directly to Mutiny, Mutiny shall forward the request to Customer and will only respond to the Data Subject to the extent necessary to determine the request relates to Customer; (vii) provide reasonable assistance to Customer so that Customer may fulfill its obligations under applicable laws; (viii) upon Customer’s request, delete or return all GDPR Personal Data upon expiration or termination of the Agreement, except where retention is required by law; and (ix) provide all information reasonably necessary to demonstrate Mutiny’s compliance with this Section 4.5, including allowing for audits whereby Mutiny will complete a data protection questionnaire of reasonable length submitted by Customer to confirm Mutiny’s compliance with this Section.
If GDPR Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Customer to Mutiny in a country that has not been found to provide an adequate level of protection under applicable data protection laws, the parties agree that the transfer is governed by Module Two’s obligations in the Annex to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“Standard Contractual Clauses”) as supplemented by Exhibit 2 attached hereto, the terms of which are incorporated herein by reference. Each Party’s signature to the Agreement is considered a signature to the Standard Contractual Clauses to the extent that the Standard Contractual Clauses apply hereunder.
If Mutiny maintains Personal Information (as defined in this California Addendum), then this California Addendum will apply. This California Addendum prevails over any conflicting terms of the Agreement, but does not otherwise modify the Agreement.
1. Definitions. For the purposes of this California Addendum, the capitalized terms used in this California Addendum and not otherwise defined in this California Addendum shall have the definitions set forth in the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”).
2. Roles and Scope. This California Addendum applies to the collection, retention, use, disclosure, and sale of Personal Information provided by Customer to Mutiny (“the Personal Information”) to provide the Services to Customer pursuant to the Agreement. Customer appoints Mutiny as a “Service Provider” under the CCPA to process the Personal Information on behalf of Customer.
3. Restrictions on Processing. Mutiny is prohibited from retaining, using, or disclosing the Personal Information for any purpose other than for the specific purpose of performing the Mutiny Services as specified in the Agreement, as set out in this Addendum, or as otherwise permitted by the CCPA. Mutiny shall not further collect, sell, or use the Personal Information except as necessary to perform the Business Purpose.
4. Consumer Rights. Mutiny shall provide reasonable assistance to Customer in facilitating compliance with Consumer rights requests. Upon direction by Customer, and in any event no later than 30 days after receipt of a request from Customer, Mutiny shall promptly delete the Personal Information as directed by Customer. Mutiny shall not be required to delete any of the Personal Information to comply with a Consumer’s request directed by Handshake if it is necessary to maintain such information in accordance with Cal. Civ. Code 1798.105(d), in which case Mutiny shall promptly inform Customer of the exceptions relied upon under 1798.105(d) and Mutiny shall not use the Personal Information retained for any other purpose than provided for by that exception.
5. Deidentified Information. In the event that either party shares Deidentified Information with the other party, the receiving party warrants that it: (i) has implemented technical safeguards that prohibit reidentification of the Consumer to whom the information may pertain; (ii) has implemented business processes that specifically prohibit reidentification of the information; (iii) has implemented business processes to prevent inadvertent release of Deidentified Information; and (iv) will make no attempt to reidentify the information.
6. Mergers, Sales, or Other Asset Transfers. If either party transfers to a Third Party the Personal Information of a Consumer as an asset that is part of a merger, acquisition, bankruptcy, or other transaction in which the Third Party assumes control of all or part of such party to the Agreement, that information shall be used or shared consistently with applicable law. If a Third Party materially alters how it uses or shares the Personal Information of a Consumer in a manner that is materially inconsistent with the promises made at the time of collection, it shall provide prior notice of the new or changed practice to the Consumer in accordance with applicable law.
7. As Required by Law. Notwithstanding any provision to the contrary of the Agreement or this California Addendum, Mutiny may cooperate with law enforcement agencies concerning conduct or activity that it reasonably and in good faith believes may violate federal, state, or local law.
8. Sale of Information. The parties acknowledge and agree that the exchange of Personal Information between the parties does not form part of any monetary or other valuable consideration exchanged between the parties with respect to the Agreement or this California Addendum.
ADDITIONAL TERMS FOR THE STANDARD CONTRACTUAL CLAUSES
This Exhibit 2 forms part of the Agreement and supplements the Standard Contractual Clauses. Capitalized terms not defined in this Exhibit 2 have the meaning set forth in the Agreement.
The parties agree that the following terms shall supplement the Standard Contractual Clauses:
Supplemental Terms. The parties agree that the following terms shall supplement the Standard Contractual Clauses: (i) a new Clause 1(e) is added the Standard Contractual Clauses which shall read: “To the extent applicable hereunder, these Clauses also apply mutatis mutandis to the Parties’ processing of personal data that is subject to the applicable data protection laws of Switzerland and/or the United Kingdom. Where applicable, references to EU Member State law or EU supervisory authorities shall be modified to include the appropriate reference under Swiss and/or United Kingdom law as it relates to transfers of personal data that are subject to such laws.”; (ii) the optional text in Clause 7 is deleted; (iii) Option 1 in Clause 9 is struck and Option 2 is kept, and data importer must submit the request for specific authorization in accordance with Section 4.5(iv) of the Agreement; (iv) the optional text in Clause 11 is deleted; and (v) in Clauses 17 and 18, the governing law and the competent courts are those of Ireland (for EEA transfers), Switzerland (for Swiss transfers), or England and Wales (for UK transfers).
2. Annex I. Annex I to the Standard Contractual Clauses shall read as follows:
A. List of Parties
Address: As set forth in the Notices section of the Agreement.
Contact person’s name, position, and contact details: As set forth in the Notices section of the Agreement.
Activities relevant to the data transferred under these Clauses: As set forth in the Agreement.
Data Importer: Mutiny.
Address: As set forth in the Notices section of the Agreement.
Contact person’s name, position, and contact details: As set forth in the Notices section of the Agreement.
Activities relevant to the data transferred under these Clauses: The Mutiny Services.
B. Description of the Transfer:
Categories of data subjects whose personal data is transferred:
Visitors and Authorized Users.
Categories of personal data transferred:
Personal data that is transferred under the Agreement.
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures:
To the parties’ knowledge, no sensitive data is transferred.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis):
Personal data is transferred in accordance with the standard functionality of the Mutiny Services, or as otherwise agreed upon by the parties.
Nature of the processing:
The Mutiny Services.
Purpose(s) of the data transfer and further processing:
The Mutiny Services.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period:
Data importer will retain personal data in accordance with the Agreement.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:
The subprocessors listed at: www.mutinyhq.com/terms/subprocessors.
C. Competent Supervisory Authority: The supervisory authority mandated by Clause 13. If no supervisory authority is mandated by Clause 13, then the Irish Data Protection Commission (DPC), and if this is not possible, then as otherwise agreed by the parties consistent with the conditions set forth in Clause 13.
D. Additional Data Transfer Impact Assessment Questions: Data importer agrees that the responses to the data transfer impact assessment questions below are true, complete, and accurate.
Is data importer subject to any laws in a country outside of the European Economic Area, Switzerland, and/or the United Kingdom where personal data is stored or accessed from that would interfere with data importer fulfilling its obligations under the Standard Contractual Clauses? For example, FISA Section 702. If yes, please list these laws: As of the effective date of the Agreement, no court has found data importer to be eligible to receive process issued under the laws contemplated by this question, including FISA Section 702, and no such court action is pending.
Has data importer ever received a request from public authorities for information pursuant to the laws contemplated by the question above? If yes, please explain: No.
Has data importer ever received a request from public authorities for personal data of individuals located in European Economic Area, Switzerland, and/or the United Kingdom? If yes, please explain: No.
3. Annex II. Annex II of the Standard Contractual Clauses shall read as follows:
Data importer shall implement and maintain appropriate technical and organisational measures designed to protect personal data in accordance with the Agreement.
4. Clarifying Terms. The parties agree that: (i) the certification of deletion required by Clause 8.5 and Clause 16(d) of the Standard Contractual Clauses will be provided upon Customer’s written request; (ii) the measures Mutiny is required to take under Clause 8.6(c) of the Standard Contractual Clauses will only cover Mutiny’s impacted systems; (iii) the audit described in Clause 8.9 of the Standard Contractual Clauses shall be carried out in accordance with Section 4.5(ix) of the Agreement; (iv) where permitted by applicable data protection laws, Mutiny may engage existing subprocessors using European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors and such use of subprocessors shall be deemed to comply with Clause 9 of the Standard Contractual Clauses; (v) the termination right contemplated by Clause 14(f) and Clause 16(c) of the Standard Contractual Clauses will be limited to the termination of the Standard Contractual Clauses, in which case, the corresponding Processing of Personal Data affected by such termination shall be discontinued unless otherwise agreed by the parties; (vi) unless otherwise stated by Mutiny, Customer will be responsible for communicating with data subjects pursuant to Clause 15.1(a) of the Standard Contractual Clauses; (vii) the information required under Clause 15.1(c) will be provided upon Customer’s written request; and (viii) notwithstanding anything to the contrary, Customer will reimburse Mutiny for all costs and expenses incurred by Mutiny in connection with the performance of Mutiny’s obligations under Clause 15.1(b) and Clause 15.2 of the Standard Contractual Clauses without regard for any limitation of liability set forth in the Agreement.