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Crittercism, Inc. Service Terms and Conditions

The following service terms and conditions (the “Terms and Conditions”) shall be deemed incorporated by reference into each Subscription Order between Crittercism, Inc. (“Crittercism”) and the customer identified thereon (“Customer”).  The Terms and Conditions and the applicable Subscription Order shall be collectively known as the “Agreement.”

  1. DEFINITIONS

1.1 “App Users” means the users of the Customer App(s).

1.2 “Customer App(s)” means the mobile application(s) of Customer identified in the Subscription Order.

1.3 “Crittercism Materials” means all materials created, developed and provided by Crittercism to Customer in connection with or arising from the Service or the Agreement.

1.4 “Crittercism Platform” means the hosted service made available through the Site that allows for performance monitoring and management to be performed for the Customer App(s) and the documentation therefor.

1.5 “Crittercism Integration Code” means the Software (including without limitation code and scripts) downloadable by Customer from the Site that is configured by Customer and included in the Customer App(s) to enable data to be transmitted from the Customer App(s) to the Crittercism Platform and the documentation therefor.

1.6 “Fees” means the Service fees payable by Customer to Crittercism, as described in the Subscription Order.

1.7 “Service” means the Crittercism Platform and the Integration Code.

1.8 “Site” means the Crittercism website located at http://www.crittercism.com, including without limitation all sub-domains thereof.

1.9 “Subscription Order” means the physical, electronic or online Crittercism order form, as applicable, which is accepted by Crittercism and further describes the Service purchased by Customer.

  1. Crittercism Platform and Integration Code

2.1 Crittercism Platform.  Crittercism hereby grants Customer the non-transferable, non-exclusive right and license during the Term (defined in Section 6.1) to access and use the Crittercism Platform internally for the sole purpose of performance monitoring and management of the Customer App(s).  Customer is responsible for obtaining and configuring all required computer hardware, software and telecommunications services to access the Crittercism Platform.

2.2 Crittercism Integration Code License.  Crittercism hereby grants Customer during the Term the non-transferable, non-exclusive right and license:

(a)  to install and use the Crittercism Integration Code internally for the sole purpose of using the Crittercism Integration Code to provide data from the Customer App(s) to the Crittercism Platform; and

(b)  to use, reproduce and distribute the Crittercism Integration Code solely as embedded within the Customer App(s) for the purpose of providing data from the Customer App(s) to the Crittercism Platform.

2.3 License Restrictions.  Customer shall have no rights or licenses with respect to the Service or the Crittercism Materials except as expressly provided in the Agreement.  Without limiting the generality of the foregoing, except as expressly provided in the Agreement, Customer may not (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer the Service or the Crittercism Materials; (b) make the Service or Crittercism Materials available to any third party; (c) use the Service or the Crittercism Materials on a service bureau basis; (d) to the extent valid under applicable law, decompile, reverse engineer, or disassemble the Service or the Crittercism Materials; (e) alter or modify the Crittercism Integration Code other than as may be reasonably necessary to use the Service for its intended purposes; (f) create derivative works based on the Service or Crittercism Materials; or (g) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service or the Crittercism Materials or during the use and operation of the Service or the Crittercism Materials.

  1. Data

3.1 Data Rights.  In connection with the operation of the Service, Crittercism collects data regarding Customer’s use of the Service (such data, “Customer Data”) and App Users’ use of the Customer App(s) (such data, “App User Data”).  Customer grants Crittercism (and its third party vendor’s subject to confidentiality obligations) the right to use, reproduce and distribute the Customer Data and App User Data in connection with Customer’s use of the Service.  Customer further grants Crittercism the right to use, reproduce and distribute Customer Data and App User Data when it is aggregated with other information and not specifically identifiable to Customer or any App User solely for the purpose of publishing industry reports on various metrics of interest (e.g. crash % rate between iOS and Android and latency issues with particular carriers).

3.2 Data Limitations.  Customer must not transfer to Crittercism, and must not modify, configure or use the Crittercism Integration Code or any other aspect of the Software or Service to track, collect, or to cause to be collected by or transferred to Crittercism, any App User Data that is personally identifiable information, financial information, health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive information (for example, Social Security Numbers), or that is used to target advertising to individual devices or App Users.  Customer shall be solely responsible for ensuring that the Customer App(s) and Customer’s use of the Service, including without limitation Customer’s provision of App User Data to Crittercism through the Crittercism Integration Code and any other provision of App User Data to Crittercism by Customer or on Customer’s behalf, comply with all applicable laws, rules, and regulations.  Customer shall obtain and maintain all rights required to permit the transfer of App User Data to Crittercism as contemplated by the Agreement, and to allow Crittercism to use the App User Data pursuant to the Agreement.  Customer is solely responsible for the Customer App(s), including without limitation all features, data, content and other materials included in, made available in or transmitted from the Customer App(s).

3.3 International Use.  The Crittercism Service is controlled and offered by Crittercism from its facilities in the United States, and the Crittercism servers and data centers are located in the United States.  If Customer chooses to access and use the Service from outside the U.S., then Customer acknowledges that Customer is transferring Customer Data and App User into the U.S. for storage and processing and that Customer is responsible for compliance with all local laws applicable to such transfer, storage and processing.

  1. Accounts

4.1 Account Registration.  In order to use the Service, Customer will have to register for a Crittercism account on the Site.   Customer agrees that the information Customer provides to Crittercism upon registration and, at all other times, will be true, accurate, current, and complete. Customer also agrees that Customer will ensure that this information is kept accurate and up-to-date at all times.

4.2 Authorized Accounts.  Customer may create Crittercism accounts with unique log-in credentials for designated users to access and use the Service on Customer’s behalf.  Customer is solely responsible at all times for (a) ensuring that all of Customer’s accounts are used solely in accordance with the Agreement, (b) maintaining the confidentiality of all log-in credentials for Customer’s accounts, and (c) for the activities of any person accessing the Crittercism Platform using any of Customer’s accounts.

  1. Fees; Payment

5.1 Fees.  Customer agrees to pay Crittercism all Fees due with respect to Customer’s use of the Service as specified in the Subscription Order.  All Fees are payable in the currency specified in the Subscription Order.  Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to the Agreement, other than taxes based on Crittercism’s net income.  All Fees are non-refundable except as otherwise provided herein.

  1. Term; Termination

6.1 Term.  The “Term” of the Agreement is set forth in the Subscription Order.  If no Term is set forth in the Subscription Order, the term of the Agreement shall commence on the Effective Date and continue for 12 months.

6.2 Termination for Cause.  Either party may terminate the Agreement effective on written notice if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within 30 days after receiving written notice of the breach from the non-breaching party.

6.3 Effect of Termination.  Sections 1, 3, 5, 6.3 and 7 through 11 of the Terms and Conditions shall survive expiration or termination of the Agreement.  Upon termination or expiration of the Agreement for any reason, all licenses granted herein to Customer shall terminate and Customer shall immediately discontinue all use of the Service, and at Crittercism’s request, return or destroy all Crittercism Materials, and certify such return or destruction in writing.

  1. Warranty & Disclaimer

7.1 Warranty.  Crittercism warrants that the Service will be provided in a professional manner consistent with industry standards and in accordance with the published specifications for the Service.  Crittercism also warrants that Customer’s use of the Service will not infringe or misappropriate any United States patent, copyright, trademark or trade secret rights of any third party and will indemnify Customer against any third party infringement or misappropriation claims as set forth in Section 8.1.  No warranties are provided with respect to free trials or beta features.

7.2 DISCLAIMER.  EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.  CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SERVICE AND CRITTERCISM MATERIALS (INCLUDING WITHOUT LIMITATION ANY RESULTS) IS AT CUSTOMER’S SOLE RISK.  CRITTERCISM AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR CRITTERCISM MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE.

  1. Indemnification

8.1 Crittercism Indemnification.  Crittercism agrees to indemnify, defend and hold Customer and its affiliates and their respective directors, officers, employees and contractors harmless from and against any liabilities, damages or expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent alleging that the technology underlying the Service, or any portion thereof, infringes such third party’s United States patent, copyright or trademark or misappropriates such third party’s trade secret, provided that Customer:  (a) promptly notifies Crittercism in writing of the claim, except that any failure to provide this notice promptly only relieves Crittercism of its responsibility pursuant to this Section to the extent its defense is materially prejudiced by the delay; (b) grants Crittercism sole control of the defense and/or settlement of the claim; and (c) provides Crittercism, at Crittercism’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim.  In the event of a claim, demand, action or proceeding that the technology underlying the Service, or any portion thereof, infringes or misappropriates any third party intellectual property or other right or, if in Crittercism’s reasonable opinion, such claim, demand, action or proceeding is likely to occur, Crittercism shall have the right, at Crittercism’s sole cost and expense, to either: (i) obtain the right to continued use of the affected portion of the Service or (ii) modify or replace, in whole or in part, the affected portion of the Service to eliminate the infringement or misappropriation.  If Crittercism is unable to achieve either of the foregoing (i) or (ii) in a commercially reasonable manner, Crittercism shall have the right to immediately terminate the Agreement upon written notice to Customer without liability therefor other than the refund of any Fees paid in advance by Customer.  The provisions of this Section constitute Customer’s sole remedy and Crittercism’s exclusive liability related to the Service with respect to any infringement, violation, or misappropriation of any intellectual property right.

  1. Limitation of Liability

9.1 LIMITATION OF DAMAGES.  EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 8 (INDEMNIFICATION), OR BREACH OF SECTIONS 2 (CRITTERCISM PLATFORM AND CRITTERCISM INTEGRATION CODE), 3 (DATA) OR 10 (CONFIDENTIALITY), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

9.2 LIMITATION OF LIABILITY.  EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 8 (INDEMNIFICATION), OR BREACH OF SECTIONS 2 (CRITTERCISM PLATFORM AND CRITTERCISM INTEGRATION CODE), 3 (DATA) OR 10 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY AND DAMAGES UNDER THE AGREEMENT EXCEED THE SUM OF THE TOTAL FEES PAID AND PAYABLE TO CRITTERCISM UNDER THE AGREEMENT DURING THE THEN CURRENT-TERM REGARDLESS OF WHETHER ANY REMEDY SPECIFIED IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

  1. Confidentiality

10.1 Confidential Information.  “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within 15 days of the disclosure.  In the case of Crittercism, Confidential Information includes all information with respect to the Fees, including without limitation the amounts of the Fees and the payment terms.  Confidential Information does not include information that:  (i) is or becomes generally known to the public through no fault of or breach of the Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.

10.2 Use and Disclosure Restrictions.  Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under the Agreement.  Except as otherwise permitted expressly by the Agreement, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of the Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein.  Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance.  The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors.  In addition, each party may disclose the provisions of the Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.

  1. Miscellaneous

11.1 Export Laws.  Customer acknowledges and agrees that U.S. and foreign laws and regulations may restrict the export and re-export of certain commodities and technical data.  Customer shall not export or re-export the Crittercism Materials in any form without first obtaining all appropriate U.S. and foreign government licenses and permissions.

11.2 Relationship of the Parties.  The parties are independent contractors with respect to each other.  The Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties, or an employee-employer relationship.  No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.

11.3 Assignment.  Neither party may assign the Agreement without the other party’s prior written consent which shall not be unreasonably withheld, provided that either party may, upon written notice to the other party, assign the Agreement in connection with the sale of substantially all of its business assets. Subject to the foregoing, the Agreement will inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.

11.4 Force Majeure.  Neither party will be responsible for any failure or delay in its performance under the Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.

11.5 Notices.  All notices under the Agreement shall be given in writing and sent by registered mail, internationally recognized carrier, or email, or shall be delivered by hand to following addresses:

Crittercism:

760 Market Street, Suite 1101San Francisco, CA 94102

Attn: VP Operations

contracts @ crittercism.com

Customer:

Via information provided in the Subscription Order

All notices shall be presumed to have been received when they are hand delivered, or five business days of their mailing, or on the business day following the day of a successful email.

11.6 Waiver.  A waiver of any provision of the Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.  The failure by either party to insist upon the strict performance of the Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.

11.7 Severability; Counterparts.  If any provision, or portion thereof, of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of the Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.

11.8 Governing Law; Jurisdiction.  The Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles.  The parties agree that the federal and state courts in Santa Clara County, California will have exclusive jurisdiction and venue under the Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.

11.9 Entire Agreement.  The Agreement, including any Subscription Order, constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof.  Any amendments to the Agreement shall only be valid if in writing and signed by each party.  Nothing contained in any Customer purchase order, order acceptance form or other similar document shall in any way modify the Agreement or add any additional provisions to the Agreement.