1. SERVICES

‍

1.1      Subject to the terms of this Data Services Agreement (the “Agreement”), Company will use commercially reasonable efforts to provide Customer with the services described in the order form (the “Services”). As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Your use of the services via the administrative account will be governed by the terms found here: https://retention.com/terms-of-use/.

1.2      Company hereby grants Customer a non-transferrable, non-sublicensable, non-assignable (except as set forth herein), world-wide, non-exclusive, limited license to access, store and use the Output Data for Customer’s own marketing purposes and internal purposes for the Term. Following the term, Customer shall not be required to delete the Output Data, and Company shall grant Customer a perpetual, non-transferrable, non-sublicensable, non-assignable (except as set forth herein) license to continue to access, store, retain and otherwise the Output Data or for Customer’s own marketing purposes.

‍

‍

2. RESTRICTIONS

‍

2.1      Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation, or data related to the Services including without limitation Output Data (“Software”) (ii) copy, modify, translate, save or create derivative works based on the Services, or any Software (except to the extent expressly permitted by Company or authorized within the Services); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (iv) remove any proprietary notices or labels. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Company shall also be responsible for maintaining the security of the Equipment and any Customer accounts or passwords (including administrative and user passwords). Customer agrees to delete the Software, including any and all component parts thereof, including the Output Data, upon the expiration of this Agreement.

‍

‍

3. CONFIDENTIALITY; PROPRIETARY RIGHTS; CUSTOMER DATA; DATA SECURITY; DATA USAGE

‍

3.1     Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services, including suppression files (“Customer Data”) and otherwise proprietary information obtained by Company or its employees in the performance of this Agreement, including information related to the business activities of Customer, information about the individual users of the Services and their use of the Services, and information that is confidential to the Customer’s clients or to third parties to which the Customer owes a duty of confidentiality. The Receiving Party agrees: (i) to take commercially reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party without breach of any agreement or obligation of confidentiality, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law, statute, rule, a regulator or regulation, court order or legal process, provided that the Receiving Party promptly informs the Disclosing Party of any such requirement (unless prohibited by applicable law from so notifying the Disclosing Party) and discloses no more information than is so required. At the request and option of the Disclosing Party, and in any event upon termination or expiration of this Agreement, the Receiving Party shall promptly return, or destroy or permanently erase, all Proprietary Information in the possession or control of the Receiving Party.

‍

3.2      Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Onboarding Services that do not contain, and are not based on any reference to any Customer Data, and (c) all intellectual property rights related to any of the foregoing.  All Output Data and technology and data, methodologies and technology used to create and deliver it (including pixel tags and underlying code used to deliver the Services) shall (as between Customer and Company) remain the exclusive property of Company.

‍

3.3      Company and Customer shall each implement and maintain reasonable and appropriate administrative, technical, physical, and organizational safeguards designed to: (i) ensure the security and confidentiality of the Customer Data, and Services; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Data, and Services; and (iii) protect against unauthorized or unlawful access to or use of the Customer Data, and Services and against accidental loss or destruction of, or damage to, the Customer Data, and Services. Company shall promptly notify Customer of any unauthorized access to any Customer Data, and Services and of any other breaches of security and shall reasonably cooperate with Customer to ensure that Customer is not negatively affected by any such occurrences or to mitigate the effects of same on Customer. No rights or licenses are granted except as expressly set forth herein. Company will cooperate with any law enforcement authorities or court order requiring the disclosure of Customer Data provided that (to the extent permissible under law) Company will provide at least 5 days’ notice to Customer prior to providing any Customer Data in response to a subpoena or other legal process.

‍

3.4      Notwithstanding anything to the contrary, and subject to Section 3.2, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Customer hereby grants to Company (on a worldwide, perpetual, and royalty-free basis) all rights, licenses and permissions necessary to effectuate the foregoing. In the interest of clarity, Company may not, and never will, use Customer Data to add to, “bulk up”, or expand its own databases that are used to produce the Output Data. Customer Data shall remain segregated from the databases used to produce the Output Data. Additionally, we will never share the Customer Data with your competitors or any of our other customers.

‍

3.5      To the extent that Company acts and exercises its privileges with respect to personal information collected pursuant to the preceding section 3.4, each party (Customer in providing and Company in receiving such personal information) is (a) an independent “business” pursuant to the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA), and (b) an independent “controller” pursuant to the respective state laws that recognize a distinction between data “controllers” and data “processors.” As to Company’s collection of personal information pursuant to that section, the provisions of the CPRA regulations governing “third parties,” set forth in section 7052 of such regulations, shall apply.  Without limitation of other requirements of such regulations, Customer shall in a timely manner provide Customer with the respective personal information of all California residents who have “opted out” of the sale of their personal information, or requested “deletion” of their personal information, where Customer has previously provided such personal information to Company.

‍

3.6      To the extent that Company receives and handles personal information for the purpose of providing its Services set forth in Exhibit A, Company is (a) a “service provider” to Customer pursuant to the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA) and (b) a “processor” pursuant to the respective state laws that recognize a distinction between data “controllers” and data “processors.” As to Company’s collection of personal information as a “service provider” or “processor,” and shall handle personal information received from Customer pursuant to the provisions set forth in Section 7050 of the CPRA regulations. Notwithstanding the foregoing (and as further described in Exhibit A), as to data collected through pixel tags on Customer Properties (as defined in Exhibit A), including Cookie Data (as defined in Exhibit A), Company is a “business” or “controller” with respect to such data, in that it is deploying or processing such information (or instructing others as to such deployment or processing) for purposes of cross-contextual advertising.

‍

3.7      The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

‍

3.8      Customer & Company both additionally agrees to the limitations and restrictions on data usage described in Exhibit A – Data Usage Terms.

‍

‍

4. PAYMENT OF FEES

‍

4.1      Customer will pay Company the fees described in the Order Form for the Services (the “Fees”). When you sign this Agreement, the payment method indicated on your Order Form will be charged for the full amount due (the “Initial Payment”), as detailed on your Order Form, plus any applicable taxes. This Initial Payment is equivalent to your first monthly subscription cost and will apply to your first full month of Services. Your subscription will be billed as an upfront monthly payment, meaning invoices will be generated on the first day of each billing cycle and will cover the Services period for your first month of Service following the completion of the onboarding period.

‍

4.2      Thereafter, Company shall bill through an invoice and full payment for invoices must be received by Company thirty (30) days after Customer’s receipt of such invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. Should your payment(s) be more than 30 days’ late, you will be liable for all of our expenses of collection, including reasonable attorneys fees we expending in collection efforts. In such event, we may additionally terminate your access to the Services immediately.

‍

‍

5. TERM AND TERMINATION

‍

5.1      Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within thirty (30) days of receipt of written notice explaining the breach in reasonable detail. Customer will pay in full for the Services up to and including the last day on which the Services are provided and Company shall refund to Customer the pro rata unused portion of any prepaid fees for the remainder of the Term. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification obligations and limitations of liability.

‍

‍

6. WARRANTY

‍

Company represents and warrants that it (i) subject to this agreement it has all rights, licenses, consents and authorizations necessary to grant the rights and licenses granted in this Agreement; (ii) the Services delivered under this Agreement will operate substantially in conformity with its documentation; and (iii) the Services do not contain, and will not transmit to Customer or its systems, any viruses, Trojan horses, timebombs, or any other code, programs or mechanisms that disrupt, delete, harm, or otherwise impede the operation of computer systems. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. 

‍

‍

7. INDEMNITY

‍

7.1      Customer shall indemnify, defend and hold Company, its agents, Affiliates, suppliers and licensors harmless from any claim, costs, losses, damages, liabilities, judgments and expenses, including reasonable fees of attorneys and other professionals (each a “Claim”), arising out of or in connection with any allegation by a third party that Customer has used the Services (including, without limitation, the Output Data) in a manner that violates any law, or failed to properly disclose or obtain any legally required consents for the Services such as in any online privacy policy or other required notice. Company shall indemnify, defend and hold Customer, its agents, Affiliates, and licensors harmless from any claim, costs, losses, damages, liabilities, judgments and expenses, including reasonable fees of attorneys and other professionals (each a “Claim”), arising out of or in connection with any allegation by a third party that the Services violate any intellectual property right held by any third party.

‍

7.2      To seek indemnification hereunder, the indemnified Party must (i) promptly notify the indemnifying Party in writing of the Claim; (ii) grant the indemnifying Party sole control of the defense (except that the indemnified Party may, at its own expense, assist in the defense); and (iii) provide the indemnifying Party, at the indemnifying Party’s expense, with all reasonable assistance, information and authority reasonably required for the defense of the Claim. In no event shall the indemnifying Party enter into any settlement or agree to any disposition of the indemnified claim(s) which imposes any materially new obligation on the indemnified Party (beyond requiring compliance with applicable law) without the prior written consent of the indemnified Party

‍

‍

8. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

‍

COMPANY DOES NOT WARRANT (AND EXPRESSLY DISCLAIMS ANY WARRANTY) THAT THE SERVICES OR WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY (AND EXPRESSLY DISCLAIMS ANY WARRANTY) AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.   THE SERVICES, THE SOFTWARE, THE OUTPUT DATA, AND THE ONBOARDING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR ANY LIABILITY ARISING OUT OF A PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR ANY FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR FOR ANY DIRECT DAMAGES IN EXCESS OF THE FEE PAID BY CUSTOMER TO COMPANY IN THE PRIOR 12 MONTHS, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

‍

‍

9. INJUNCTIVE RELIEF

‍

Customer acknowledges that its breach of the “Resale Restriction” in the Data Usage Terms at Exhibit B would result in irreparable harm and significant injury to Company, which would be difficult to ascertain. In the event of such a breach, Company therefore shall have the right to seek (in addition to and without exclusion of other remedies available to it at law or in equity) immediate injunctive relief, without posting bond; Company likewise shall be entitled to reimbursement from Client for reasonable attorneys’ fees and costs where Company is a prevailing party in any such action.

‍

‍

10. MISCELLANEOUS

‍

Subject to Customer’s approval, which shall not be unreasonably withheld, Company may use Customer’s name and logo in its promotional materials, including without limitation, on its website. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent, provided however that either party may, without such consent, assign this Agreement (which shall be inclusive of all obligations and privileges herein) to any successor in interest to such assignor that has acquired all or substantially all stock or assets in assignor.  Any other purported assignment will be void. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. The words “including” or “includes” means including or includes (as applicable) without limitation or restriction. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified mail, return receipt requested. Notices to Customer shall be addressed to as described above This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. Any claim or action brought by one of the parties in connection with this Agreement will be brought in the appropriate Federal or State court located in the County of Texas and the parties irrevocably consent to the exclusive jurisdiction of such court.

‍