Legal Terms

MUTINY TERMS OF SERVICE

Thank you for signing up for a subscription with Mutiny HQ Corporation. (“Mutiny”, “we” or “us”). By placing an order, clicking to accept this Agreement, or using or accessing any Mutiny Service or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”). 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 this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. This Agreement is effective as of June 17, 2018. 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 and by emailing a notification to the designated person at your company. Updates to these Terms will not take effect until 15 days after the date of posting and emailing. It’s important that you review the Terms whenever Mutiny modifies them because if you continue to use the Services more than 15 days thereafter, you agree to be bound by the modified Agreement. If you do not agree to be bound by the modified Terms, then you cannot use the Services anymore and you should notify Mutiny in a receipt-acknowledged writing within 15 days of Mutiny’s email to you. If you stop using the service because of a change in these Terms, you will receive a prorated refund of unused prepaid Fees you have already paid. Lack of receipt-acknowledged notification within 15 days will constitute acceptance of the change in these Terms. Customer is responsible for keeping Mutiny up to date about the designated contact person by emailing jaleh@Mutinyhq.com.

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, mobile, server-side, email and ads. To accomplish this, Customer first installs Mutiny Code for the relevant platform, and then uses the tools within the applicable Mutiny Service to select Content to personalize. Based on these selections, variations of Customer Properties are presented to Visitors. The Service-Specific Terms and the applicable Documentation provide additional details about each Mutiny Service.

2. DEFINITIONS

2.1 “Order Form” means any Mutiny ordering documentation or online sign-up or subscription flow that references this Agreement. 2.2 “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). 2.3 “Scope of Use” means the usage limits or other scope of use descriptions for the Mutiny Service included in the applicable Order Form (including descriptions of packages and features) or Documentation. These include any numerical limits on Visitors or Authorized Users, descriptions of product feature levels, and names or numerical limits for Customer Properties. 2.4 “Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf. 2.5 “Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the Mutiny Service. This Content becomes public on the Customer Properties, so Customer should only provide Content that it wishes others to see. 2.6 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the Mutiny Service, including Third-Party Content. 2.7 “Visitor” means any end user of a Customer Property. 2.8 “Visitor Data” means 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. 2.9 “Customer Sites” means the web domains expressly identified in the applicable Order Form. 2.10 “Customer Property or Properties” means: (i) Customer Sites; or (iii) other types of platforms or properties (as may be supported by Mutiny) specified in the applicable Order Form. 2.11 “Customer Data” means: (i) Content; (ii) Submitted Data; (iii) Visitor Data; 2.12 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations. 2.13 “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. 2.14 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Visitors; and (ii) learnings, logs, and data regarding use of the Mutiny Service. 2.15 “Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Agreement, that is 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. 2.16 “Mutiny Code” means the code developed and provided by Mutiny to Customer for use in connection with the Mutiny Service, which may include Mutiny’s JavaScript code, SDK(s) and Add-Ons developed and provided by Mutiny. 2.17 “Mutiny Service” means the specific proprietary software-as-a-service product(s) of Mutiny specified in Customer’s Order Form, including any related Mutiny Code and Documentation. 2.18 “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 or derivative works of any of the foregoing, including as may incorporate any Feedback.

3. ACCOUNT REGISTRATION AND USE

Customer and its Authorized Users may need to register for a Mutiny account in order to place orders or to access or receive an Mutiny Service. Account information must be accurate, current, and complete. Customer agrees to keep this information up-to-date so that Mutiny may send notices, statements, and other information by email or through Customer’s account.

4. USE RIGHTS

4.1 Use of Mutiny Services. Subject to all the terms and conditions of this Agreement, Mutiny grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Mutiny Service(s) designated on Customer’s Order Form solely for Customer’s internal business purposes, but only in accordance with this Agreement (including without limitation any applicable Service-Specific Terms), the Documentation, and all applicable Scope of Use descriptions. The rights granted in this Section further include the right to install and use the relevant Mutiny Code on the specified Customer Properties and, in the case of Customer Apps, to distribute the installed Mutiny Code with Customer Apps. 4.2 Use by Others. Customer may permit its Authorized Users to use the Mutiny Service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions. 4.3 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 specifically permitted above; (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 (including Mutiny Code), 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; (vii) distribute any portion of the Mutiny Service other than the Mutiny Code installed in Customer Properties as specifically permitted above; (viii) access the Mutiny Service 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; 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.

5. CUSTOMER DATA

5.1 Rights in Customer Data. As between the parties, 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 to provide the Mutiny Service and related services to Customer and as set out in Section 5.2 (Aggregate/Anonymous 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 Mutiny Service. 5.2 Aggregate/Anonymous Data. Customer agrees that Mutiny will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Mutiny Technology, which Mutiny may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Mutiny’s products and services and to create and distribute reports and other materials). For clarity, Mutiny will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) 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). Customer is not responsible for Mutiny’s use of Aggregate/Anonymous Data. 5.3 Security. Mutiny agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized 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 disclosure and modification. 5.4 Storage. Mutiny does not provide an archiving service. During the Subscription Term, Customer acknowledges that Mutiny may delete Content no longer in active use. Mutiny expressly disclaims all other obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.

6. CUSTOMER OBLIGATIONS

Customer agrees to: (i) maintain a legally-adequate privacy policy on its Customer Properties and provide all required disclosures to its Visitors; (ii) obtain all necessary rights, releases, and consents to allow Customer Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Mutiny the rights set out in this Agreement; (iii) not submit, collect, or use any Regulated Data to or with the Mutiny Service (including from Third-Party Products), except for online identifiers (such as IP addresses or cookie IDs) collected by default by the Mutiny Service; (iv) comply with any third-party terms applicable to any Customer Apps (such as app store terms), and to any Third-Party Products used in connection with the Mutiny Service; (v) not take any action that would cause Mutiny, the Mutiny Service or the Mutiny Code to become subject to any third-party terms (including open source license terms). Customer represents and warrants that its Customer Properties and the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. If Customer receives any take down requests or infringement notices related to Customer Data or its use of Third-Party Products, it must promptly: (a) stop using the related item with the Mutiny Service; and (b) notify Mutiny. If Mutiny receives any take down requests or infringement notices related to Customer Data or Customer’s use of Third-Party Products, Mutiny may respond in accordance with its policies, and will notify and consult with the Customer on next steps.

7. SERVICES

Mutiny makes available support services to Customer upon payment of applicable fees (if any), as specified in Customer’s Order Form. Any support services are subject to this Agreement and Mutiny’s applicable support policies. Mutiny may also provide onboarding, deployment and other services under this Agreement. The scope, pricing, and other terms for these additional services will be specified in an Order Form. Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Mutiny Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the Mutiny Service itself.

8. FEES AND PAYMENT

By placing an Order Form for purchase of the Services, Customer agrees to pay Mutiny the fees specified in the Order Form (“Fees”). Unless otherwise stated in the Order Form, Customer will pay Mutiny Fees for the entire Subscription Term (as defined in the Order Form). 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 assessed in connection with these Terms and its performance by any authority within or outside of the U.S., except for taxes payable on Mutiny’s net income. All amounts not paid when due under these Terms will accrue interest daily (without the requirement of a notice) at a rate of 1.5% per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full. Notwithstanding the foregoing, 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 Services. Customer is solely responsible for the cost of Third-Party Content from data providers such as Clearbit.

9. TERM AND TERMINATION

9.1 Term. This Agreement is effective until all Subscription Terms for the Mutiny Service(s) have expired or are terminated as expressly permitted in this Agreement. 9.2 Subscription Term and Renewals. By executing an Order Form for purchase of an Mutiny Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.3 (Termination for Cause). Each Subscription Term will renew as specified in the Order Form. Customer will pay Mutiny the Fees pursuant to the schedule and payment terms specified in the Order Form. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at Mutiny’s then-applicable rates. 9.3 Termination for Cause. Either party may terminate these Terms upon written notice if 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. 9.4 Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable Mutiny Service(s) (including any related Mutiny Technology); (b) stop distributing any Mutiny Code installed on its Customer Properties; and (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 (ii) Customer’s right to access any Customer Data in the applicable Mutiny Service will cease and Mutiny may delete the Customer Data at any time after 30 days from the date of termination. 9.5 Survival. The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (Mutiny Technology); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); and 15 (General).

10. CONFIDENTIAL INFORMATION

10.1 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 this Agreement; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this 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. 10.2 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 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. MUTINY TECHNOLOGY

11.1 Ownership and Updates. This is a subscription agreement for access to and use of the Mutiny Service. 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, no ownership rights are transferred to Customer under this Agreement. Customer agrees that Mutiny (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Mutiny Technology (which is deemed Mutiny’s Confidential Information) and reserves any licenses not specifically granted in this 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 and that Mutiny at its option may make updates, bug fixes, modifications or improvements to the Mutiny Service from time-to-time. 11.2 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.

12. INDEMNIFICATION

Customer agrees to defend and indemnify Mutiny from and against any third-party claims and liabilities to the extent resulting from: Customer Data; Customer Properties (including services or products provided through the Customer Properties); or a breach or alleged breach of Section 6 (Customer Obligations). Customer must not settle any claim without Mutiny’s prior written consent if the settlement would require Mutiny to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action. Mutiny may participate in a claim through counsel of its own choosing at its own expense and Customer and Mutiny will reasonably cooperate on the defense.

13. DISCLAIMERS

ALL MUTINY TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER MUTINY NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. MUTINY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT MUTINY TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT MUTINY TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. MUTINY DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. MUTINY WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-MUTINY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON MUTINY TECHNOLOGY OR MUTINY’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). 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. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

14. LIMITATIONS OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MUTINY OR ITS SUPPLIERS 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, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES. MUTINY’S AND ITS SUPPLIERS’ 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).

15. GENERAL

15.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Mutiny may assign this 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 this Agreement except as expressly authorized under this Section 16.1 will be void. 15.2 Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to Mutiny, in English, at the following address, jaleh@mutinyhq.com. Mutiny may send notices to the email addresses on Customer’s account or, at Mutiny’s option, to Customer’s last-known postal address. 15.3 Publicity. Unless otherwise specified in the applicable Order Form, Mutiny may use Customer’s name, logo, and marks (including marks on Customer Properties) to identify Customer as an Mutiny customer on Mutiny’s website and other marketing materials. 15.4 Subcontractors. Mutiny may use subcontractors and permit them to exercise the rights granted to Mutiny in order to provide the Mutiny Service and related services under this Agreement. These subcontractors may include, for example, Mutiny’s hosted service and CDN providers. However, subject to all terms and conditions of this Agreement, Mutiny will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Mutiny Services if and as required under this Agreement. 15.5 Independent Contractors. The parties to this Agreement are independent contractors, and this 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. 15.6 Severability. If any provision of this 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 this Agreement may otherwise remain in effect. 15.7 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 the Northern District of 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. 15.8 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 this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.