HABU AMC INTELLIGENCE TERMS OF SERVICE

Effective Date: May 1, 2022

These Habu AMC Intelligence Terms of Service (“Habu-AMC Terms”) govern Customer’s access and use of the Habu for Amazon Marketing Cloud (“AMC”) Intelligence services (the “Habu-AMC Services”) offered by Habu, Inc. (“Habu”). “Customer” is the organization that you represent in agreeing to these Habu-AMC Terms.

BY ACCEPTING THESE HABU-AMC TERMS, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING HABU-AMC SERVICES MADE AVAILABLE FOR FREE, CUSTOMER AGREES TO THESE HABU-AMC TERMS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

These Habu-AMC Terms, together with any Order Form (as defined below) and the Data Processing Addendum (found here: [_____________]) (“DPA”), form a binding contract between Customer and Habu (the “Agreement”). Customer may purchase subscriptions via an order form entered into between Customer and Habu (“Order Form”); in so doing, Customer agrees to the then-current Habu-AMC Terms on behalf of Customer. Paid subscriptions commence and continue for the term specified in the Order Form; fees are specified in the Order Form. Free services may be made available by Habu without an Order Form. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.

  1. Habu Responsibilities.
    1. Habu will make available the Habu-AMC Services accordance with the Agreement. Habu will provide the Habu-AMC Services in accord with the laws and regulations applicable to Habu’s provision of Habu-AMC Services to its customers generally. Habu will provide standard support for the Habu-AMC Services to Customer at no additional charge, unless otherwise specified in an Order Form. Habu is responsible for its personnel’s and agents’ compliance with Habu’s obligations under this Agreement.

    2. Habu will use commercially reasonable efforts to make its online Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Habu will inform Customer in advance), and (b) unavailability caused by circumstances beyond Habu’s reasonable control.

    3. Habu will maintain appropriate administrative, physical and technical safeguards for the protection of Customer Data (defined below), including measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer’s personnel). Thirty days after termination or expiration of this Agreement, Habu will have no obligation to maintain or provide any Customer Data, and will thereafter delete all Customer Data and Customer Confidential Information from its systems.

  2. Customer Responsibilities.
    1. In its use of the Habu-AMC Services, Customer will comply with the Agreement and all applicable laws and regulations. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify Habu promptly of any such unauthorized access or use. Customer is responsible for its personnel’s and agents’ compliance with Customer’s obligations under this Agreement.

    2. Customer will not (a) make any part of the Habu-AMC Services available to, or use the Habu-AMC Services for the benefit of, any third party; (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Habu-AMC Services; (c) modify, copy or create derivative works of the Habu-AMC Services (or any part thereof); (d) disassemble, reverse-engineer or decompile the Habu-AMC Services; (e) access the Habu-AMC Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; (f) use the Habu-AMC Services or the AMC to store or transmit materials that are unlawful, misleading, libelous, obscene, hateful or violative of others’ privacy rights; or (g) introduce viruses or other malware to the AMC or the Habu-AMC Services, Habu’s systems or end users. Customer will not use the Habu-AMC Services or the AMC in a manner that violates its agreement with any third party or could reasonably be expected to damage the Habu-AMC Services or the AMC or reflect unfavorably on the reputation of Habu or its partners. Customer will not export, re-export, or transfer the Habu-AMC Services, in whole or in part, to any country, person, or entity subject to U.S. export restrictions.

    3. To help enable the efficient provision of the Habu-AMC Services, Customer and its personnel will reasonably cooperate with Habu and its personnel, including as applicable, providing information as to Customer requirements and, access to Customer’s environment or AMC instance.

  3. Privacy.
    1. Each party will take all steps reasonably necessary to enable the other party to comply (or demonstrate its compliance) with applicable privacy laws and regulations (including providing needed documentation).

    2. Each party will conspicuously post and comply with a legally sufficient privacy notice on its properties where data is collected and used in association with the Habu-AMC Services. The privacy notice must accurately describe the party’s practices relating to data collection, sharing, and use.

    3. Customer is responsible for the accuracy, quality and legality of Customer Data (as defined below), the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Habu-AMC Services or the AMC. Customer will ensure that all necessary rights and permissions and a lawful basis are established for the transfer, use and processing of Customer Data in connection with the Habu-AMC Services and the AMC in compliance with all applicable laws, regulations, and industry guidelines.

    4. Without limiting Customer’s obligations, Customer shall not upload to, or cause, the Habu-AMC Services to process: (a) information regarding end user health conditions or any information or inferences regarding health that would be considered sensitive under applicable industry standards; (b) any information from or about individuals Customer knows or should know are children (meaning individuals younger than 16 years of age or the age defined by law in any applicable jurisdiction) or from a Customer website or other property that Customer knows or should know is directed to children, or any user or audience segments directed at or identifying children; or (c) any other information that would be considered sensitive, special, or similar under applicable law. Customer shall not use the Habu-AMC Services (including Habu Data) for any purpose other than as expressly permitted herein, such as for decisions relating to eligibility and pricing of credit, health care, employment, insurance, housing, or education. Habu may restrict the data that it allows or makes available on the Habu-AMC Services in its reasonable discretion to protect user privacy.

  4. Data and Proprietary Rights.
    1. Except as set forth in this Agreement, as between Habu and Customer, Customer exclusively owns all right, title and interest (including all intellectual property rights) in any queries created or provided by Customer in its use of the Habu-AMC Services and all data input into the Habu-AMC Services by or on behalf of Customer (collectively, “Customer Data”). Habu may only use Customer Data to provide and ensure proper operation of the Habu-AMC Services and associated systems in accordance with this Agreement, and to build or improve the Habu’s services and offerings to the extent permitted under applicable data protection laws.

    2. Except as set forth in this Agreement, as between Habu and Customer, Habu exclusively owns all right, title and interest (including all intellectual property rights) in its products and services, including its machine learning; all the data within the Habu-AMC Services, including system performance metrics and Habu-created or Habu-sourced identifiers, except for Customer Data (collectively, “Habu Data”); any queries created or provided by Habu including all Habu preexisting queries; and any future developments, derivatives and enhancements to the Habu-AMC Services. Except as otherwise provided in the Agreement, Customer may only use Habu Data in connection with using the Habu-AMC Services. Customer acknowledges that, as Services are provided to Customer and to Habu’s other customers, the Habu-AMC Services and the underlying algorithms are engaged in continual machine learning, and that the results and output of such learning are owned solely by Habu. Habu will not be restricted from improving its services on the basis of general learning and know-how gained from the provision of the Habu-AMC Services to Customer and Habu's other partners. Habu may use any suggestions or feedback perpetually and irrevocably, without accounting, attribution or compensation.

    3. Notwithstanding anything to the contrary, Habu may collect, produce, use, or retain aggregated or other deidentified data related to or generated from Customer’s use of the Habu-AMC Services (e.g. system performance data), provided that such data is not reasonably capable of identifying Customer or any individual consumer or household. Habu retains all right, title and interest in and to such data.

    4. Aside from the rights granted herein or in an Order Form, neither party grants the other any other right, express or implied, and each party reserves all rights not expressly granted hereunder. No jointly owned intellectual property is created hereunder.

  5. AMC Interoperation. The Habu-AMC Services is designed to interoperate with the AMC. Customer will comply with the terms of service or similar policies of the AMC. Customer grants Habu permission to allow the AMC and its provider to access Customer Data and information about Customer’s usage of the AMC as appropriate for the interoperation of the AMC with the Habu-AMC Services. Habu cannot guarantee the continued availability of the AMC and is not responsible for matters outside of Habu’s reasonable control. Any use by Customer of the AMC, and any exchange of data between Customer and the AMC, is solely between Customer and the AMC. Habu is not responsible for any act or omission by the AMC, including, without limitation, any disclosure, modification or deletion of Customer Data resulting from access by the AMC.

  6. Payment, Taxes, and Renewal.
    1. Customer will pay fees specified in each Order Form in US Dollars, within 30 days of the invoice date. If an Order Form specifies payment by credit card, Customer will promptly provide credit card billing details and hereby authorizes Habu to charge the credit card for Services. Habu reserves the right to charge interest on late payments at the lower of 1.5% of the outstanding balance per month, or the maximum permitted by law. Habu’s fees do not include any present or future taxes, levies, fees or duties of any kind (“Taxes”). Except for any Tax that Habu has charged to Customer, Customer is responsible for remitting all Taxes based on or arising from this Agreement (other than Taxes based on Habu’s net income), without setoff or deduction from the fees. If Habu is held responsible for such Taxes, Customer will reimburse Habu for such payments.

    2. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any renewal term will increase by up to 3% above the applicable pricing in the prior term, unless Habu provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Habu’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

  7. Free Services. Habu-AMC Services may be provided to Customer without charge as determined by Habu in its sole discretion. Customer agrees that Habu may, in its sole discretion and for any or no reason, limit or terminate Customer’s access to the free services or any part thereof (regardless of whether or not these free services are used in conjunction with other products or services for which Customers pays Habu a fee). Customer agrees that any limitation or termination of Customer’s access to the free services may be without prior notice, and Customer agrees that Habu will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the free services prior to termination of Customer’s access to the free services for any reason, provided that if Habu terminates Customer’s account, except as required by law, Habu will provide Customer a reasonable opportunity to retrieve its Customer Data.

  8. Termination and Suspension.
    1. Either party may terminate these Habu-AMC Terms on thirty (30) days’ written notice if, and only if, there are no Order Forms and paid subscriptions in effect. There is no other right to terminate for convenience.

    2. Either party may terminate the Agreement and any Order Form immediately if (a) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (b) the other party is in material breach of the Agreement, has been given notice of such material breach, and has failed to cure within 30 days (or 5 days in the case of failure to pay fees as described in the Agreement). If these Habu-AMC Terms or an Order Form is terminated for Customer’s uncured breach, Customer will promptly pay any minimum amounts that would have been due for the full duration of the term as it existed prior to the early termination. Habu may suspend access to and use of the Habu-AMC Services if Habu reasonably believes that Customer’s continuing use of the Habu-AMC Services may cause risk of litigation or otherwise be harmful to Habu. Upon the termination or expiration of these Habu-AMC Terms, Customer’s right to use the Habu-AMC Services will terminate, and Customer will promptly return (or at Habu’s election, delete) Habu’s Confidential Information (including any Habu Data).

  9. Confidentiality. “Confidential Information” means information that the disclosing party identifies as confidential or the receiving party should reasonably understand to be confidential given the circumstances and the type of information. Confidential Information does not include information that the receiving party can demonstrate (a) it knew without restriction before receipt from the disclosing party, (b) is publicly available through no fault of the receiving party, (c) it rightfully received from a third party without a duty of confidentiality or (d) is independently developed without use of the disclosing party’s Confidential Information. The receiving party may use the disclosing party’s Confidential Information only as permitted under this Agreement and must use at least reasonable care to prevent any unauthorized use or disclosure of the disclosing party’s Confidential Information. The receiving party may share the disclosing party’s Confidential Information with its employees, agents and contractors, and in the case of Habu with the AMC, who need to know it, as long as they are bound to confidentiality obligations that are consistent with this Agreement and provided that a party that makes a permitted disclosure will remain responsible for the recipient’s compliance with this section. If compelled to do so by law, the receiving party may disclose the disclosing party’s Confidential Information as long as it provides reasonable prior notice to the disclosing party (unless legally prohibited). The terms of any Order Form will be Confidential Information of both parties.

  10. Mutual Indemnity.
    1. Habu will indemnify, defend and hold harmless Customer and its officers, directors, employees and representatives from any actual, out of pocket liability or expense (including reasonable attorneys’ fees) (“Liabilities”) from any third-party claim that (i) the Habu-AMC Services in the form made available by Habu infringe such third-party’s intellectual-property rights or (ii) Habu’s violation of applicable laws or regulations or infringement of the intellectual-property or other rights of a third party. Customer will indemnify, defend, and hold harmless Habu and its officers, directors, employees and representatives (collectively, “Habu Parties”) from any actual, out of pocket Liabilities from any third-party claim arising out of or from (i) Customer Data or any other Customer information or materials; (ii) Customer’s violation of applicable laws or regulations or infringement of the intellectual-property or other rights of a third party; or (iii) the AMC to the extent it relates to an act or omission of Customer. Each party’s indemnification obligations are conditioned on (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve the indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), (b) the indemnitor having sole control and authority with respect to the defense and settlement of any such claim, and (c) the indemnified party cooperating fully with the indemnitor, at the indemnitor’s sole cost and expense. The indemnitor will not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any liability, obligation or restriction on the indemnified party. The indemnified party may participate with its own counsel, at its own expense. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

    2. If the Habu-AMC Services are held in a suit or proceeding to infringe any intellectual-property or other rights of a third party, or Habu reasonably believes that it is likely to be found to do so, then Habu may, at its sole cost, expense and option, either (a) procure the right to continue using the Habu-AMC Services or (b) modify the Habu-AMC Services so that they become non-infringing without affecting the basic functionality of the Habu-AMC Services; provided, however, that if (a) and (b) are not practicable, Habu may, in its sole discretion, terminate this Agreement with respect to the applicable portion of the Habu-AMC Services by giving Customer 30 days’ written notice, upon which termination Habu will refund the portion of any prepayment that reflects the remaining subscription term.

  11. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, HABU PROVIDES ALL HABU-AMC SERVICES AND HABU DATA “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL HABU BE LIABLE, OR OBLIGATED TO INDEMNIFY ANY PARTY, FOR ANY CLAIM CAUSED OR ALLEGED TO BE CAUSED BY CUSTOMER DATA OR ANY INFORMATION, PRODUCTS OR SERVICES SUPPLIED BY OR THROUGH CUSTOMER.

  12. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF BREACHES OF SECTION 9 OF THIS AGREEMENT OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF THE CAUSE OF ACTION AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, AND (B) EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATION TO PAY ANY MINIMUM FEES AND FOR SERVICES ALREADY PROVIDED, IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTHS PRIOR TO THE DATE THAT THE CAUSE OF ACTION AROSE. THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

  13. Notices. Notices must be in writing and are effective when (a) delivered personally or (b) sent by email, in the case of Habu, to legal@habu.com or, in the case of Customer, to the address set forth in an Order Form or an email address used to register for the Habu-AMC Services, so long as the sending party does not receive an error notice and the email includes in the subject line “LEGAL NOTICE.” For the avoidance of doubt, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices. In that case, the sending party will attempt to reach the receiving party by phone.

  14. Miscellaneous.
    1. Neither party will be liable for failure or delay in performance due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or failure of internet or communications infrastructure.

    2. Neither party will make any public statement relating to this Agreement without the prior written approval of the other, except that Habu may include Customer’s name and logo in its marketing, promotional materials and customer lists.

    3. The Agreement is the entire agreement of the parties relating to this subject matter, and it supersedes all other commitments and understandings with respect to such subject matter. In the event of a conflict between these Habu-AMC Terms and other written agreement between the parties (including an Order Form), the other written agreement will control. Any additional terms that Customer includes in a purchase order or similar document will be of no force and effect unless Habu expressly agrees in writing that such terms will supersede this Agreement. The Agreement cannot be amended except by a writing signed by both parties.

    4. The Agreement is governed by the laws of the State of Delaware, excluding conflicts of laws principles. The Agreement and the licenses herein are not transferable or assignable without the prior written consent of the non-assigning party; provided, however, that either party may assign this Agreement and the licenses herein upon written notice, to an affiliate or an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise. Habu may terminate this Agreement upon notice if Customer assigns this Agreement to a Habu competitor. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected.

    5. Any action arising under or related to this Agreement will be resolved in the state or federal courts (and the parties hereby consent to personal jurisdiction) in the State of Delaware. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees. Claims must be brought in the initiating party’s individual capacity, not as a plaintiff or class member in any class action or similar proceeding.