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Terms of Services

1. Overview of Statusmojo Platform

Statusmojo provides a suite of products that allows subscribers to test, personalize and analyze the experiences they deliver through their web and mobile platforms. To accomplish this, Customer first installs Statusmojo Code on a website or mobile application, then uses the editing and configuration tools within the applicable Statusmojo Service to select Content to personalize or test. 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 Statusmojo Service.

2. Definitions

  • "Add-On" means integrations, applications and other add-ons that are used with the Statusmojo Services.
  • "Affiliate" means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of such entity or ownership of 50% or more of the voting securities of such entity.
  • "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) anonymous learning, logs and data regarding use of the Statusmojo Services.
  • "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.
  • "Confidential Information" means code, inventions, know-how, product plans, inventions, 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.
  • "Content" means text, images, videos or other content for the Customer Property that Customer selects for use with the Statusmojo Service. This Content becomes public on the Customer Properties, so Customer should only provide Content that it wishes others to see.
  • "Customer Apps" means the mobile applications expressly identified in the applicable Order Form.
  • "Customer Data"means: (i) Content; (ii) Submitted Data; (iii) Visitor Data; and (iv) Any other Customer Data specified in the Service-Specific Terms.
  • "Customer Property or Properties"means the (i) Customer Sites; (ii) Customer Apps; or (iii) other types of platforms or properties (as may be supported by Statusmojo) specified in the applicable Order Form.
  • "Customer Sites" means the web domains and sub domains expressly identified in the applicable Order Form.
  • "Documentation" means Statusmojo’s end user technical documentation provided with the Statusmojo Service.
  • "Statusmojo Code" means the code developed and provided by Statusmojo to Customer for use in connection with the Statusmojo Service, which may include Statusmojo’s JavaScript code (for Customer Sites), mobile SDK(s) (for Customer Apps), and Add-Ons or other similar code developed and provided by Statusmojo.
  • "Statusmojo Service" means the specific proprietary software-as-a-service product of Statusmojo specified in Customer’s Order Form, including any related Statusmojo Code and Documentation. “Statusmojo Services” do not include any Third Party Product.
  • "Statusmojo Technology" means the Statusmojo Services, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Statusmojo 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.
  • "Order Form" means any Statusmojo ordering documentation or online sign-up or subscription flow that references this Agreement.
  • "Regulated Data" means: (i) any personally identifiable information (other than information about Authorized Users necessary to create user accounts); (ii) any patient, medical or other protected or regulated health information (including HIPAA-regulated data); 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 (including data covered under the Gramm-Leach-Bliley Act or related rules or regulations).
  • "Scope of Use" means the usage limits or other scope of use descriptions for the Statusmojo Service included in the applicable Order Form 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.
  • "Service-Specific Terms" means the additional or different terms and conditions (if any) specific to Statusmojo Service or other Statusmojo products, features, services or subscription plans.
  • "Submitted Data" data uploaded, inputted or otherwise submitted by Customer to the Statusmojo Service, including Third Party Content.
  • "Subscription Term" means the initial term for the subscription to the applicable Statusmojo Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
  • "Third Party Content" means content, data or other materials that Customer provides to the Statusmojo Services from its third-party data providers, including through Add-Ons used by Customer.
  • "Third Party Product" means any Add-On, applications, integrations, software, code, online services, systems and other products not developed by Statusmojo.
  • "Visitor" means any end user of a Customer Property.
  • "Visitor Data" means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the Statusmojo Service, including any such data specified in the Service-Specific Terms.
  • Other terms are defined in other Sections of this Agreement or in the Service-Specific Terms.

3. Account Registration and Use

Customer and its Authorized Users may need to register for an Statusmojo account in order to place orders or to access or receive an Statusmojo Service. Account information must be accurate, current and complete, and will be governed by Statusmojo’s Privacy Policy. Customer agrees to keep this information up-to-date so that Statusmojo may send notices, statements and other information by email or through Customer’s account. Customer must ensure that any user IDs, passwords and other access credentials (such as API tokens) for the Statusmojo Service are kept strictly confidential and not shared with any unauthorized person. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any Statusmojo Service. Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Customer must notify Statusmojo immediately of any breach of security Statusmojo or unauthorized use of its account. Accounts are granted to specific Customers and must not be shared with others.

4. Use Rights

Use of Statusmojo Services Subject to all terms and conditions of this Agreement, Statusmojo grants Customer a worldwide, non-exclusive, non-transferable, non-sub licensable right and license during the applicable Subscription Term to access and use the Statusmojo Service 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. Where specified in the Service-Specific Terms, the Statusmojo Service may require installation of Statusmojo Code on Customer Properties. In such cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Statusmojo Code on the specified Customer Properties and, in the case of Customer Apps, to distribute the installed Statusmojo Code with Customer Apps.

Use by Others Customer may permit its Authorized Users to use the Statusmojo 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 herein. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.

General Restrictions Customer must not (and must not allow any third party to): (i) rent, lease, copy, transfer, sublicense or provide access to the Statusmojo Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate the Statusmojo Service (or any portion thereof) into, 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) use the Statusmojo Service (or any portion thereof) for time sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the Statusmojo Service (which is deemed Statusmojo’s Confidential Information); (v) modify or create a derivative work of the Statusmojo Service or any portion thereof; (vi) 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 Statusmojo Service (including Statusmojo Code), except to the extent expressly permitted by applicable law and then only upon advance notice to Statusmojo ; (vii) break or circumvent any security measures or rate limits for Statusmojo Services; (viii) distribute any portion of the Statusmojo Service other than the Statusmojo Code installed in Customer Apps as specifically permitted above; or (ix) remove or obscure any proprietary or other notices contained in the Statusmojo Service including in any reports or output obtained from the Statusmojo Service.

Beta Releases and Free Access Subscriptions Statusmojo may provide Customer with an Statusmojo Service or Statusmojo Code for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage Statusmojo Services, Statusmojo Code, integrations or features (“Beta Releases”). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Customer’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. Statusmojo may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH OPTIMIZELY WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK. Statusmojo makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms. Statusmojo may terminate Customer’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Statusmojo’s sole discretion, without liability.

5. Customer Data

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 therein (excluding any Statusmojo Technology). Customer hereby grants Statusmojo 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 Statusmojo Service and related services to Customer and as otherwise provided below. 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 Statusmojo Service.

Aggregate/Anonymous Data Customer agrees that Statusmojo will have the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Statusmojo Technology, which Statusmojo may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Statusmojo’s products and services and to create and distribute reports and other materials). Statusmojo will not distribute Aggregate/Anonymous Data in a manner that personally identifies Customer or its Visitors.

Security Statusmojo agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. These 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. Statusmojo takes no responsibility and assumes no liability for any Customer Data other than its express security obligations in this Section.

Storage Statusmojo does not provide an archiving service. During the Subscription Term, Customer acknowledges that Statusmojo may delete Content no longer in active use. Statusmojo expressly disclaims all other obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.

6. Customer Obligation

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 Statusmojo the rights herein; (iii) use the Statusmojo Services in compliance with Statusmojo’s then-current Acceptable Use Policy; (iv) not submit, collect or use any Regulated Data to or with the Statusmojo Service (including from Third Party Products) except where expressly permitted by the Service-Specific Terms; (v) comply with any third party terms applicable to any Customer Apps (such as app store terms) and to Third Party Products used in connection with the Statusmojo Service; and (vi) not take any action that would cause Statusmojo , the Statusmojo Service or the Statusmojo 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 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 stop using these items with the Statusmojo Services and notify Statusmojo.

7. Fees & Payment

Customer agrees to pay all fees in U.S. dollars within thirty (30) days of the invoice date, unless a different currency or payment period is specified in the applicable Order Form. Statusmojo’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Statusmojo. Customer will make tax payments to Statusmojo to the extent amounts are included in Statusmojo’s invoices. Some customers may have the option to pay by credit card. If Customer is paying by credit card, it authorizes Statusmojo to charge fees and other amounts automatically to Customer’s credit card without invoice. Unless otherwise specified in an Order Form or Service-Specific Term, such charges typically occur monthly in advance, though overage fees (if any) may be charged in arrears. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.

8. Term & Termination

Term This Agreement is effective until all Subscription Terms for the Statusmojo Service(s) have expired or are terminated as expressly permitted herein.

Subscription Term and Renewals By placing an Order Form for purchase of an Statusmojo 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 9.4 (Termination for Cause) or a Service-Specific Term. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the Statusmojo Service. Pricing for any Subscription Term renewal, new Order Form or Order Form change will be at Statusmojo’s then-applicable rates.

Suspension of Service Statusmojo may suspend Customer’s access to the Statusmojo Service(s) if: (i) Customer’s account is overdue or (ii) Customer has exceeded its Scope of Use limits. Statusmojo may also suspend Customer’s access to the Statusmojo Service(s), remove Customer Data or disable Third Party Products if it determines that: (a) Customer has breached Sections 4 (Use Rights) or 6 (Customer Obligations) or (b) suspension is necessary to prevent harm or liability to other customers or third parties or to preserve the security, stability, availability or integrity of the Statusmojo Service. Statusmojo will have no liability for taking action as permitted above. For avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period. However, unless this Agreement has been terminated, Statusmojo will cooperate with Customer to restore access to the Statusmojo Service once it verifies that Customer has resolved the condition requiring suspension.

Termination for Cause Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). Statusmojo may also terminate this Agreement or any related Order Forms immediately if Customer breaches Sections 4 (Use Rights) or 6 (Customer Obligations) or for repeated violations of this Agreement.

Effect of Termination Upon any expiration or termination of this Agreement or an Order Form: (i) Customer’s license rights shall terminate and it must immediately cease use of the applicable Statusmojo Service(s) (including any related Statusmojo Technology), cease distributing any Statusmojo Code installed on its Customer Properties, and delete (or, at Statusmojo’s request, return) any and all copies of the Statusmojo Code, any Statusmojo documentation, passwords or access codes and any other Statusmojo Confidential Information in Customer’s possession, custody or control and (ii) Customer’s right to access any Customer Data in the applicable Statusmojo Service will cease and Statusmojo may delete any such data in its possession at any time. If Statusmojo terminates this Agreement for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

Survival The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (Statusmojo Technology); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).

9. Confidential Infromation

Obligation of Confidentiality 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) use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents or contractors having a legitimate need to know (which, for Statusmojo, includes the subcontractors referenced in Section 16.4), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 10 and these recipients are bound to confidentiality obligations no less protective than this Section.

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 prior to receipt of 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.

Remedies The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

10. Statusmojo Technology

Ownership and Updates This is a subscription agreement for access to and use of the Statusmojo Service. Customer acknowledges that it is obtaining only a limited right to use the Statusmojo 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 Statusmojo (or its suppliers) retains all rights, title and interest (including all intellectual property rights) in and to all Statusmojo Technology (which is deemed Statusmojo’s Confidential Information) and reserves any licenses not specifically granted herein. Other than the Statusmojo Code, the Statusmojo Service is offered as an on-line, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Statusmojo Service and that Statusmojo at its option may make updates, bug fixes, modifications or improvements to the Statusmojo Service from time-to-time.

Feedback If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Statusmojo (collectively, “Feedback”), Customer hereby grants Statusmojo a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Statusmojo’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.

11. Indemnification/h3>

Customer will indemnify and hold Statusmojo harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to any Customer Data, Customer Property (including services or products provided through such property), or breach or alleged breach of Section 6 (Customer Obligations). Customer also agrees to defend Statusmojo against these claims at Statusmojo’s request, but Statusmojo may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Customer must not settle any claim without Statusmojo’s prior written consent if the settlement does not fully release Statusmojo from liability or would require Statusmojo to admit fault, pay any amounts or take or refrain from taking any action.

12. Disclaimers

ALL STATUSMOJO TECHNOLOGY AND RELATED SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. NEITHER STATUSMOJO 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. STATUSMOJO MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT STATUSMOJO TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT STATUSMOJO TECHNOLOGY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE. STATUSMOJO DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. STATUSMOJO WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD PARTY PRODUCTS, THIRD PARTY CONTENT, OR NON-STATUSMOJO 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 STATUSMOJO TECHNOLOGY OR STATUSMOJO’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). CUSTOMER ACKNOWLEDGES THAT STATUSMOJO IS NOT A BUSINESS ASSOCIATE OR SUBCONTRACTOR (AS THOSE TERMS ARE DEFINED IN THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT) AND THAT THE STATUSMOJO SERVICE IS NOT HIPAA COMPLIANT. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

13. Limitations of Liablity

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL STATUSMOJO 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 SUCH DAMAGES. IN NO EVENT WILL STATUSMOJO’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO STATUSMOJO FOR THE APPLICABLE STATUSMOJO SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, STATUSMOJO’S TOTAL LIABILITY SHALL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY STATUSMOJO TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

14. Third Party Products and Integrations

If Customer uses Third Party Products in connection with the Statusmojo Services, those products may make Third Party Content available to Customer and may access Customer’s instance of the Statusmojo Service, including Customer Data. Statusmojo does not warrant or support Third Party Products or Third Party Content (whether or not these items are designated by Statusmojo as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Statusmojo Services, including their modification, deletion, disclosure or collection of Customer Data. Statusmojo is not responsible in any way for Customer Data once it is transmitted, copied or removed from the Statusmojo Services. Customer may use Statusmojo’s Add-on Platform to enable non-Statusmojo Add-Ons for use with the Statusmojo Services.

15. General

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 Statusmojo 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 null and void.

Notices Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to Statusmojo at the following address, legal@optimizely.com, and include “Attn. Legal Department” in the subject line. Statusmojo may send notices to the e-mail addresses on Customer’s account or, at Statusmojo’s option, to Customer’s last-known postal address. Statusmojo may also provide operational notices regarding the Statusmojo Service or other business-related notices through conspicuous posting of such notice on Statusmojo’s website or the Statusmojo Service. Each party hereby consents to receipt of electronic notices. Statusmojo is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.

Publicity Unless otherwise specified in the applicable Order Form, Statusmojo may use Customer’s name, logo and marks (including marks on Customer Properties) to identify Customer as an Statusmojo customer on Statusmojo’s website and other marketing materials.

Subcontractors Statusmojo may use subcontractors and permit them to exercise the rights granted to Statusmojo in order to provide the Statusmojo Service and related services under this Agreement. These subcontractors may include, for example, Statusmojo’s hosted service and CDN providers. However, subject to all terms and conditions herein, Statusmojo will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Statusmojo Services if and as required under this Agreement.

Subpoenas Nothing in this Agreement prevents Statusmojo from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Statusmojo will use commercially reasonable efforts to notify Customer where permitted to do so.

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.

Force Majeure Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

Export Customer is responsible for obtaining any required export or import authorizations for use of the Statusmojo Services. Customer represents and warrants that it, its affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the Statusmojo Service in violation of any U.S. export embargo, prohibition or restriction.

Amendments; Waivers Statusmojo may update or modify this Agreement (including any Service-Specific Terms, referenced policies and other documents) from time to time. If Statusmojo modifies the Agreement during Customer’s Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal, except that: (i) changes to the policies referenced herein (such as the Acceptable Use Policy) will take effect thirty (30) days from the date of posting; (ii) if Statusmojo launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance; and (iii) any updated or modified Agreement will take effect immediately for Free Access Subscriptions or if Customer accepts new Order Forms or Order Form changes following the modification. Customer may be required to click through the updated Agreement to show acceptance; in any event, continued use of Free Access Subscriptions or any renewal of a Subscription Term following the update shall constitute acceptance of the updated Agreement. If Customer does not agree to the updated Agreement after it takes effect, Customer will no longer have the right to use the Statusmojo Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

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.

No Third Party Rights Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form and not any affiliated entities.

Attorneys’ Fees and Costs The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

Entire Agreement The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

Governing Law; Jurisdiction and Venue This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state courts located in Santa Clara County, California or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts.

U.S. Government Use The Statusmojo Services are based upon commercial computer software. If the user or licensee of an Statusmojo Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Statusmojo Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Statusmojo Services were developed fully at private expense. All other use is prohibited.