THE TERMS OF THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF THE APPLICATION SERVICES (AS DEFINED BELOW) OF MIXPANEL, INC. (“MIXPANEL”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE MIXPANEL’S APPLICATION SERVICES. BY ACCEPTING THESE TERMS BELOW OR BY USING MIXPANEL’S APPLICATION SERVICES IN ANY MANNER, YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS OR USE THE APPLICATION SERVICES (“EFFECTIVE DATE”).
1. USE OF THE APPLICATION SERVICES
1.1 Use of Application Services. Subject to the terms of this Agreement, Mixpanel grants to Customer a limited, non-exclusive, non-transferable right to access and use the Application Services solely for Customer’s internal business purposes and not for resale or further distribution. Customer’s right to access and use the Application Services shall be limited to the Subscription Plan for the Application Services purchased by Customer and all terms and conditions herein. Except for the rights expressly granted to Customer in this Agreement, Mixpanel and its licensors retain all right, title and interest in and to the Application Services, including all related rights protected by applicable intellectual property laws, including U.S. copyright law, trade secret, and international treaties.
1.2 Authorized Users. Subject to the limits of the Subscription Plan, Customer may allow its Authorized Users to access and use the Application Services; provided Customer shall be responsible for its Authorized Users in compliance with Customer’s obligations under the terms of the Agreement.
“Application Services” shall mean the online, web-based, and mobile-based applications provided by Mixpanel through a Mixpanel Site, ordered by Customer’s selection and acceptance of a Subscription Plan by means of (i) the online purchasing process on a website operated by Mixpanel or its Affiliates or (ii) an executed Order Form. “Authorized User” means any individual provided with access to the Application Services by Customer. A “Subscription Plan” shall mean a specified pricing plan and term length with associated features, functionality and volume tiers for the Application Services purchased by Customer. An “Order Form” shall mean an ordering document for the Application Services, including without limitation statements of work, signed by both parties and incorporating the terms of this Agreement by reference. An “Affiliate” means an entity that directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity. “Mixpanel Site” shall mean https://mixpanel.com or other designated websites or IP addresses for mobile applications communicated to Customer by Mixpanel.
1.3 Subscription Plans.
1.3.1 The Application Services are provided through existing and legacy Subscription Plans. For all Subscription Plans: a “Data Point” shall mean a JSON object comprised of an event (string) and a dictionary of properties (object) that is stored by the Application Services; a “User Profile” shall mean a JSON object comprised of an identifier or identifying string intended to indicate a unique user and a dictionary of properties (object) that is stored by the Application Services; and a “Monthly Tracked User” or “MTU” shall mean a unique identifier sent with at least one Data Point to the Application Services in a calendar month.
1.3.2 Free Services. Mixpanel offers free Subscription Plans for no fees, but which have limited features, functionality, and volume tiers for the Application Services. Mixpanel may modify the free Subscription Plans at any time in its sole discretion or even discontinue them entirely without prior notice to Customer.
1.3.3 Legacy Services. From time to time Mixpanel will cease to offer certain Subscription Plans. Mixpanel shall use commercially reasonable efforts to support such legacy Subscription Plans until the end of the term during which the Subscription Plan is deprecated or as otherwise terminated. Notwithstanding the foregoing, Mixpanel reserves the right to discontinue supporting legacy Subscription Plans at any time without prior notice.
1.4 A La Carte Fees. In the event Customer’s use of the Application Services exceeds the volume tier of the Subscription Plan purchased by Customer, Mixpanel will immediately charge additional fees (“A La Carte Fees”) consistent with the Documentation, at (i) 150% of the unit price applicable to Customer’s selected volume tier for our enterprise level Subscription Plans taking into consideration the Enterprise MTU calculation in the Order Form to minimize A La Carte Fees or (ii) 120% of the unit price applicable to Customer’s selected volume tier for all other Subscription Plans, and the Customer shall be obligated to pay any A La Carte Fees in the next month. For Subscription Plans on MTUs, if the number of Data Points or updates to User Profiles sent by Customer to the Application Services in a calendar month is greater than the number equal to the quantity of MTUs sent to the Application Services in such calendar month multiplied by 1,000, each and every additional 1,000 Data Points or updates to User Profiles shall be considered an additional MTU for the purposes of calculating A La Carte Fees.
1.5 Modifications. Subject to pricing terms agreed in an Order Form, Mixpanel may modify the pricing of its services at any time and add new services or pricing plans for additional fees and charges, or amend fees and charges for existing services, at any time and in its sole discretion without prior notice to Customer. Upon written notice, Mixpanel may increase the fees of the services in a forthcoming term of the Subscription Plan by up to five percent for like services.
2. ACCESS TO THE APPLICATION SERVICES
2.1 Restrictions. Customer shall use the Application Services only in compliance with all applicable laws, including any applicable data protection and privacy laws, and the terms of this Agreement. Customer shall not and shall not permit or authorize any third party to: (i) copy, rent, sell, lease, sublicense, distribute, assign, or otherwise transfer or encumber rights to the Application Services, or use the Application Services for the benefit of any third party, or make the Application Services available to anyone other than its Authorized Users; (ii) use the Application Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or to process, send or store Prohibited Information, infringing or unlawful material, viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iii) circumvent or disable any digital rights management, usage rules, or other security features of the Application Services, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Application Services or the data contained therein; (iv) modify, copy, translate, enhance, decompile, disassemble, reverse engineer or create derivative works based on the Application Services, or any portion thereof; (v) access or use the Application Services for the purpose of building a competitive product or service or copying its features or user interface; (vi) remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Application Services; or (vi) use the Application Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Application Services.
“Prohibited Information” shall mean (a) information under regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards), including, but without limitation, financial account numbers, debit or credit card information, magnetic stripe data, or card verification values; (b) government issued personal identifiers, including, but without limitation, driver’s license numbers, passport numbers, or other state issued identification numbers; (c) bio-metric identifiers, including without limitation, genetic data, iris scans, thumb or finger prints, cardiac rhythm identifiers, facial modeling data, or health data; (d) personally identifiable information collected from children under the age of 13 or from online services directed toward children; (e) real time geo-location data which can track or identify an individual’s precise movements; (f) passwords, authentication/authorization credentials, business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications); (g) export-controlled information for which Customer has not obtained all required export licenses or government approvals; or (h) other information the unauthorized disclosure of which could cause material, severe, or catastrophic harm or impact to any data subjects or third parties.
2.2 Maintenance. Mixpanel does not guarantee the maintenance or continued function of, and Mixpanel reserves the right to change, discontinue, delete or deprecate, at any time and at Mixpanel’s sole discretion, any product feature, support service and any custom report template that may be made available to or accessible by Customer, including through the Application Services. Custom reports could include, but are not limited to, custom JQL queries, ReportKit Applications, or other reports customized for Customer’s use.
2.3 Excess Burden. Mixpanel reserves the right to restrict, suspend, or terminate access to the Application Services at any time, if in Mixpanel’s sole determination, Customer is using the Application Services in a manner that violates applicable laws or the terms of this Agreement, fails to make payment to Mixpanel, or creates an Excess Burden on Mixpanel’s systems. “Excess Burden” means the Application Services are being used to engage in denial of service attacks, spamming, or any illegal activity, or use of Application Services is causing immediate, material and ongoing harm to Mixpanel or Mixpanel’s other customers.
2.4 Beta Services. From time to time, Mixpanel may make Beta Services available to Customer at no charge. Customer may choose to utilize such Beta Services in Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not fully supported and may be subject to additional terms and fees that may be presented to Customer. Beta Services are provided on an “as-is” and “as available” basis without any warranty, support, maintenance, storage, service-level agreement or indemnity obligation of any kind and so, are not considered “Application Services” hereunder, even if displayed in the user interface; however, all restrictions herein, Mixpanel’s reservation of rights and Customer’s obligations concerning the Application Services shall apply equally to Customer’s use of Beta Services. Mixpanel may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Mixpanel will have no liability for any harm or damage arising out of or in connection with a Beta Service. “Beta Services” means a product, service or functionality provided by Mixpanel that may be made available to Customer to try at Customer’s option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description. Beta Services may be considered Confidential Information of Mixpanel, if so denoted or communicated by Mixpanel to Customer. Customer will not disclose (including, but not limited to, in a press release or public statement) any information about, involving or regarding Beta Services (including the existence of), except as agreed by Mixpanel in writing.
3. PAYMENT TERMS
3.1 Billing Terms. Subscription Plans are billed in advance of their respective terms and automatically renew at the end of their respective terms for an equivalent term, or as otherwise stated in the Order Form, unless Customer chooses not to renew such plan by writing to Mixpanel at https://help.mixpanel.com/hc/en-us/requests/new or Mixpanel terminates the Agreement. Fees paid hereunder, including A La Carte Fees, are non-refundable and shall be billed in U.S. Dollars. Except as otherwise set forth in an Order Form, fees due hereunder will be billed to Customer’s credit card and Customer authorizes the card issuer to pay all such amounts and authorizes Mixpanel (or its billing agent) to charge the credit card account until the Application Services are terminated as set forth herein; provided that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay.
3.2 Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for payment of all Taxes associated with its purchases hereunder (excluding taxes based on Mixpanel’s net income or property), and any related penalties and interest. Customer will make all required payments to Mixpanel free and clear of, and without reduction for, any withholding taxes. Customer will, upon Mixpanel’s request, provide Mixpanel with official receipts issued by appropriate taxing authorities, or such other evidence as Mixpanel may reasonably request, to establish that such Taxes have been paid.
3.3 Credits. Mixpanel may, at its sole discretion, choose to offer credits for the Application Services, including discount codes or promotional campaigns. Credits are non-transferable and do not have any monetary or cash value. Any credits can only be used to offset fees per the terms and conditions expressly identified by Mixpanel and, unless otherwise stated by Mixpanel, shall no longer be redeemable ninety (90) days from the date of issuance.
3.4 Failure of Payment. If Customer fails to pay fees within five business days of notice of delinquent payments, in addition to other available remedies, Mixpanel reserves the right to suspend or terminate access to the Application Services and delete the Customer Content (as defined below).