Master Service Agreement

1. Definitions

1. The definitions and rules of interpretation in this clause apply to these Terms:

1. Clause and schedule headings are for informational and organisational purposes only and shall not affect the interpretation of these Terms.
2. Where the words "include", "includes", "including" or "in particular" are used in these Terms, they are deemed to have the words “without limitation” following them. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
3. If any term in these Terms conflicts with any terms or conditions in an Order Form then the Order Form shall prevail in relation to the Products or Additional Services detailed in that Order Form.

2. Supply of the Products

1. SegmentStream shall, during the Subscription Term, supply the Products on and subject to the Terms. SegmentStream undertakes that the Products will be supplied with reasonable and professional skill and care and in accordance with the SLA and Privacy Policy, provided that such undertaking shall not apply to the extent of any non-conformance that is caused by the use of the Products contrary to SegmentStream’s instructions, written or oral, or any modification or alteration of the Products or Script by a party other than SegmentStream or SegmentStream's duly authorised partners, contractors or agents. The Products are provided “as-is” subject to reasonable defects.
2. Customer shall (a) permit, assist and cooperate with SegmentStream to monitor Actual Advertising Spend and Actual Unique Visitors Data for the purpose of calculating the Subscription Fees; (b) provide SegmentStream with: (i) all necessary cooperation in relation to these Terms; and (ii) all necessary access to such information as may be required in order to render and receive the Products, including access to Customer Data, security access information and configuration settings and services; (c) comply with all applicable laws and regulations of any government agency with respect to its activities under these Terms; (d) carry out all of its responsibilities set forth in these Terms in a timely and efficient manner. If there are delays in the Customer's provision of any assistance or information as agreed by the parties, SegmentStream may adjust any agreed-upon timetable or delivery schedule as reasonably necessary to compensate for such delay; and (e) be solely responsible for: (i) procuring and maintaining Customer’s computer devices, network connections, and telecommunications links, and the security thereof; (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s own network connections or telecommunications links or caused by the internet; and (iii) all uses of Customer’s account. The Customer agrees to ensure that its network and systems (including its internet browser) comply with the specifications provided by SegmentStream as modified or amended.

1. Customer agrees that SegmentStream is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Products may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Other than as expressly provided in the Order Form, these Terms and the SLA, no implied conditions, warranties, or other terms apply (including any implied warranties or terms as to Customer's use of the Products being uninterrupted or error-free or fitness for a particular purpose). The Customer acknowledges, agrees, and understands that nothing herein shall be construed as, or considered a guarantee of performance of the Products by SegmentStream, including, but not limited to the success of such Product.
2. These Terms shall not prevent SegmentStream from entering into similar agreements with any third parties, or from independently developing, using, selling, or licensing documentation, products, and/or services that are similar to those provided under these Terms.
3. Customer acknowledges that the Products may enable or assist it to access, interact with, and/or purchase products, technology, and/or services from certain third parties (each a “Third-Party Product”). When the Customer accesses any Third-Party Product, it does so at its own risk. Any use of a Third-Party Products is subject solely to the terms and conditions governing such Third-Party Products (and Customer shall materially comply with such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Product, is between Customer and the relevant third party, and not to SegmentStream. SegmentStream makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Product or any contract entered into and any transactions completed by Customer with any such third party. The Customer acknowledges that the use of the Third-Party Products may involve the exchange of Customer Data between the Products and such Third-Party Products and that such exchange of Customer Data may involve a transfer of personal data outside the European Economic Area. Customer hereby consents to such exchange of Customer Data and warrants that such exchange complies with the terms of all applicable laws. Further, Customer acknowledges and agrees that, if Customer or an Authorized User installs or enables a Third-Party Product, Customer grants SegmentStream permission to allow the provider of such Third-Party Product to access Customer Data solely to the extent required for the interoperation of the Third-Party Product with the Products or as Customer may otherwise authorize or direct. Without limiting the generality of the foregoing, if Customer subscribes in an Order Form to any Third-Party Product, Customer is expressly agreeing to be bound by the terms and conditions applicable to such product and/or services.

3. Customer’s Use of the Products

1. Subject to the terms and conditions of these Terms (including payment by Customer of the Fees and Additional Charges in accordance with clause 6 and the restrictions set out in this clause 3), SegmentStream hereby grants Customer a non-exclusive, non-transferable (except as set forth specifically in clause 12.9), non-sublicensable, freely revocable right and licence, during the Subscription Term only, to (a) integrate the Script with the Customer Sites; and (b) permit Customer and the Authorised Users to use the Products, in each case, in accordance with the Terms and conditions of these Terms, during the Subscription Term only and solely for Customer's internal business operations.
2. Customer hereby grants to SegmentStream a non-exclusive, royalty-free, non-transferable (except as set forth in clause 12.9), freely revocable right and licence to use, modify, create derivative works of, transfer, and otherwise reproduce in any medium, currently known or developed in the future, any Customer Data for the sole purposes of (a) rendering the Products under these Terms, and (b) developing, maintaining or improving the Products.
3. Customer shall: (a) keep secure and confidential any PIN codes, API keys, and passwords necessary for accessing and using the Products; (b) use all reasonable efforts to not access, store, distribute or transmit any Viruses when accessing and using the Products; and (c) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Products and, in the event of any such unauthorised access or use, to promptly notify SegmentStream and reasonably cooperate with SegmentStream to block the unauthorised access or use.
4. Customer shall not, directly or indirectly: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) and except to the extent expressly permitted under these Terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Script (as applicable) or the Products in any form or media, their derivatives, source codes, or templates, or by any means; or (ii) attempt to reverse compile, disassemble, tamper with, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Script or Products or any other products which SegmentStream owns that is outside of the scope of these Terms; (b) use the Products in a manner that is illegal or facilitates illegal activity, or causes damage or injury to any person or property or tortuously violates any rights or interests; (c) use any automated system, including "robots," "spiders," or "offline readers," to access the Products in a manner that sends more request messages to the Products than a human can reasonably produce in the same period of time by using a conventional online web browser; (d) attempt to interfere with or compromise the integrity or security of the Products; (e) access all or any part of the Products in order to build or facilitate a product or service that competes with the Products; (f) license, sell, rent, lease, transfer, assign, distribute, display, disclose, provide, or otherwise commercially exploit, or otherwise make the Products available to any third party (other than to an Authorised User in accordance with clause 3.1); (g) attempt to obtain, or assist any third party in obtaining, access to the Products or services other than as provided under these Terms; (h) use the Product, Script or any work product developed under these Terms by SegmentStream after the earlier expiration, termination of default of these Terms, the SLA, or Order Form. The Customer acknowledges and understands that continued use of the Products after the expiration or termination of these Terms shall cause irreparable harm to SegmentStream, and accordingly, SegmentStream may take any and all actions necessary and appropriate to protect its rights, and in addition to payment of all Fees for the time of unauthorised use shall be responsible for all costs and damages incurred in SegmentStream’s efforts to secure compliance, including legal fees; or (i) purport, promise or agree to do any of the foregoing.

1. Customer shall ensure that all Authorised Users comply with the terms of these Terms. Customer shall be primarily responsible for all activities conducted under its or its Authorised Users’ logins. Without prejudice to SegmentStream’s other rights under these Terms, Customer shall notify SegmentStream immediately in the event that any Authorised User is in breach of these Terms and shall ensure that such Authorised User immediately discontinues its use of the Products. The Customer shall reasonably cooperate with SegmentStream to remedy any misuse of the Script or the Products or any conduct that is or would constitute a breach of the terms of these Terms.

4. Additional Services

1. SegmentStream shall make available to the Customer an appropriately trained employee or contractor to carry out such services as are mutually agreed between the parties in an Order Form (the “Additional Services”). Such SegmentStream resource shall be provided during Normal Working Hours (unless otherwise specifically agreed in an Order Form) on the number of Days agreed in the Order Form. For the purpose of this clause 4, a “Day” means 7.5 Normal Working Hours.
2. If the Customer wishes to purchase any Additional Services, the parties may agree to mutually execute one or more separate statements of work (each a “Statement of Work”) containing the relevant terms and conditions. Unless otherwise identified in a Statement of Work, all Additional Services must be used within the Initial Subscription Term or applicable Renewal Period. Any portion of the Additional Services not used within such period will be automatically forfeited, with no further action required of either party, and the Customer will not be entitled to any refund or credit for any prepaid but unused fees. Customer may not apply any portion of any unused Additional Services or fees paid, for any products or services other than those stated in the Order Form.
3. SegmentStream shall provide the Additional Services with reasonable skill and care and in accordance with generally recognised commercial practices and standards. This warranty is exclusive and in lieu of all other warranties and conditions, whether express or implied. Nothing in any description of Additional Services is intended as an additional warranty of any sort and no conditions, warranties or other terms apply to any Additional Services (including any software or code) supplied by SegmentStream unless expressly set out in these Terms, the Statement of Work, or the Order Form. No implied conditions, warranties, or other terms apply (including any implied terms as to the satisfactory quality, fitness for purpose, or conformance with description). SegmentStream will re-perform Additional Services to remedy any breach of warranty.
4. If either party requests a change to the scope or execution of the Additional Services SegmentStream shall, within a reasonable time, provide a written estimate to the Customer of (a) the likely time required to implement the change; (b) any necessary variations to SegmentStream’s charges arising from the change; and (c) any other impact of the change on these Terms. If the Customer wishes SegmentStream to proceed with the change, SegmentStream has no obligation to do so unless and until the parties have agreed in writing to all of the necessary variations to its charges, the Additional Services, the Order Form, and any other relevant terms of these Terms to take account of the change. Notwithstanding the foregoing, SegmentStream may, from time to time on reasonable notice, change the Additional Services in order to comply with any applicable regulatory or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Additional Services or materially adversely affect the Customer.
5. SegmentStream shall deliver all Additional Services from SegmentStream’s offices unless otherwise mutually agreed between the parties. If any SegmentStream resource is required to travel to Customer’s premises or any other third party premises to deliver the Additional Services to Customer, Customer shall be responsible for SegmentStream’s reasonable expenses.
6. Subcontractors. SegmentStream may, in its reasonable discretion, use subcontractors inside or outside the United Kingdom to perform any of its obligations hereunder. SegmentStream will be responsible for the performance of Additional Services by its personnel (including employees and contractors) and their compliance with SegmentStream’s obligations under these Terms, except as otherwise specified herein.

5. Personal Data

1. To the extent that SegmentStream processes any Personal Data (as defined in the DPA) contained in Customer Data, on the Customer’s behalf, in the provision of the Products, the terms of the data processing addendum at https://segmentstream.com/dpa ("DPA"), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Customer and its applicable Affiliates are each the data exporter, and Customer's signing of these Terms, and/or an applicable Affiliate's signing of an Order Form, shall be treated as the signing of the Standard Contractual Clauses and their Appendices.

6. Charges and Payment

1. Save for where otherwise stated in the Order Form, the Fees related to the Initial Subscription Term will be invoiced and paid prior to the commencement of services. Except if the agreement is terminated by the Customer as provided in Section 11.1, the Fees relating to each Renewal Term will be invoiced annually basis and paid within (7) days of the invoice date. A delay in receiving payment will result in the Subscription Term being adjusted accordingly unless otherwise agreed.
2. The Fees for the Initial Subscription Term shall be the prices set out in the Order Form. The Fees during any Renewal Term shall be determined in accordance with clause 6.3. The Customer acknowledges and agrees that if the Basis of Calculation is not accurate or ceases to be accurate by a margin of 10%, or if the Customer's usage is continually excessive, unfair, or is not consistent with the usage SegmentStream would typically expect on the Customer's current package, SegmentStream may at any time during the Term, on notice, and at its sole option, modify the Fees to be proportionate to the Actual Advertising Spend and Actual Unique Visitors Data on the Customer Site(s) (such increase in Fees being the “Overage Charge”). In extreme cases, SegmentStream may suspend or terminate the Customer's ability to access the Products. The Overage Charge shall be invoiced to the Customer monthly in arrears, and payment is due upon receipt. The Overage Charge will be proportional to the amount by which the Actual Advertising Spend or Unique Visitors Data exceeds the Basis of Calculation (as applicable).
3. SegmentStream may adjust the Fees for any additional Renewal Term, by giving written notice to the Customer at least seventy-five (75) days before the start of each Renewal Term, to (a) remove any discounts granted during the Initial Subscription Term or then-current Renewal Term, as applicable; (b) update the Basis of Calculation to reflect increases in Estimated Unique Visitors Data; (c) reflect changes in the standard rate at which SegmentStream provides services on a time and materials basis; and/or (d) increase the Fees charged to the Customer by up to 7% or the Consumer Price Index measure of inflation (whichever is greater), any such price increase shall be effective for such additional Renewal Term.
4. Customer will pay each invoice submitted by SegmentStream: (a) within 15 days of the date of the invoice, and (b) in full and cleared funds. Time is of the essence for any payment due to SegmentStream and a condition precedent to services being continued in SegmentStream’s sole discretion.
5. If Customer fails to make payment of any and all Fees within fifteen (15) days of the invoice becoming due, then, without liability to Customer or prejudice to any of SegmentStream’s other rights and remedies: (a) SegmentStream may cease to provide and/or disable Customer’s and Authorised Users’ access to all or part of the Products and SegmentStream shall be under no obligation to provide any or all of the Products or Additional Services while the invoice(s) concerned remain unpaid, and (b) SegmentStream shall be entitled to recover all reasonable legal fees and other reasonable costs associated with the collection of such amounts; and (c) charge the Customer interest on the overdue amount(s) on a daily basis at an annual rate equal to two per cent (2%) over the then current base lending rate of the local central bank at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
6. All amounts and Fees stated or referred to in these Terms: (a) shall (unless otherwise detailed in the Order Form) be payable in EUR; (b) are exclusive of any applicable taxes or charges (including any sales or other transaction-based tax, or value-added or non-resident withholding tax), which shall (if applicable) be added to SegmentStream's invoice at the appropriate rate and be payable by Customer; and (c) are non-cancelable and all payments are non-refundable. The Customer must make all payments without setoffs, withholdings or deductions of any kind.
7. Default: In the event of a default of these Terms by Customer, which shall be defined as (a) Customer’s inability to pay any sums due and owing under these Terms; or (b) a breach by Customer of any warranty or representation, then: (i) All sums due and owing under these Terms, the Service Level Agreement and the Order Form for the Term shall immediately become due and owing to SegmentStream; and (ii) SegmentStream may immediately suspend all Products and/or Additional Services, without notice or further opportunity to cure in its sole discretion

7. Proprietary Rights

1. Customer acknowledges and agrees that SegmentStream and/or its licensors or partners own all Intellectual Property Rights and any other rights in or arising out of or in connection with the Products and the Generally Applicable Know-How. Except as expressly stated in these Terms, these Terms do not grant Customer any Intellectual Property Rights or any other rights or licences in respect of the Products or the Generally Applicable Know-How, and Customer shall not acquire or claim any rights in respect of the same by virtue of the rights granted under these Terms. SegmentStream expressly reserves all right, title and interest in and to any Intellectual Property Rights not specifically granted to Customer herein. SegmentStream grants no licence, whether implied or express, except as specifically set forth in these Terms and/or any Sales Order.
2. SegmentStream acknowledges and agrees that Customer (or Customer Affiliate(s) as applicable) and/or its licensors own all Intellectual Property Rights and any other rights in Customer Data and the Customer Site. Except as expressly stated in these Terms, these Terms do not grant SegmentStream any Intellectual Property Rights or any other rights or licences in respect of Customer Data or the Customer Site and SegmentStream shall not acquire or claim any rights in respect of Customer Data or the Customer Site by virtue of the rights granted under these Terms.
3. (i) As between Customer and SegmentStream, Customer will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Customer including any contribution by SegmentStream (“Customer Materials”). Subject to the terms of these Terms, Customer grants SegmentStream a non-exclusive, non-transferable, worldwide, royalty-free licence to reproduce, perform, display, distribute, create derivative works of, and otherwise use the Customer Materials in connection with providing the Product and/or Additional Services during the Subscription Term and otherwise performing its obligations under these Terms. (ii) As between Customer and SegmentStream, SegmentStream will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for SegmentStream, (either alone or others) either existing at this time or later developed, and provided to Customer under the Order Form, and any derivative works thereof, excluding any incorporated Customer Confidential Information (collectively, “SegmentStream Materials”). Subject to the terms of these Terms, SegmentStream grants Customer a non-exclusive, non-transferable, worldwide, royalty-free licence to reproduce, perform, display, distribute, create derivative works of, and otherwise use the SegmentStream Materials in connection with receiving the Product and/or Additional Services during the Subscription Term and otherwise performing its obligations under these Terms.

8. Confidentiality

1. The Receiving Party shall hold all Confidential Information in confidence and, unless required by law, not make Confidential Information available to any third party, or use the Confidential Information for any purpose other than the performance of its obligations or exercise of its rights under these Terms.
2. Without prejudice to clause 8.1, the Receiving Party may disclose Confidential Information to those of its affiliates, employees, agents and advisors (together the “Representatives”) who need to know such Confidential Information solely in connection with the implementation of these Terms, provided that the Receiving Party is at all times responsible for its Representatives’ compliance with the obligations set out in these Terms. Each party shall procure that its Representatives are bound by confidentiality agreements applicable to the Confidential Information supplied to the Receiving Party on terms no less onerous than those contained in this clause 8. Subject to the foregoing, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party, provided that such loss, destruction, alteration or disclosure was not caused or Authorised by the Receiving Party.
3. The Disclosing Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information to the Receiving Party (or its Representatives).
4. The Receiving Party agrees that the Confidential Information is and shall at all times unless otherwise notified, remain the exclusive property of the Disclosing Party and the Receiving Party shall not acquire, by implication or otherwise, any right, title, interest or licence in or to any Confidential Information or to any intellectual property rights, if any, embodied in such Confidential Information. The Receiving Party acknowledges and agrees that Disclosing Party may be irreparably harmed by a breach of the terms of these Terms and that damages may not be an adequate remedy. The Disclosing Party shall be entitled to seek an injunction or specific performance for any threatened or actual breach of the provisions of these Terms by the Receiving Party or any other person receiving Confidential Information pursuant to these Terms.

9. Indemnity

1. SegmentStream shall, subject to the remainder of this clause 9, defend and hold harmless Customer, and its officers, directors and employees, against any claim that the Products infringe any patent or other Intellectual Property Rights in the UK, EU, United States, or any other country where the Products are deployed, subject to the same conditions as of the Effective Date or any other Intellectual Property Rights, provided that: (a) SegmentStream is given notice of any such claim; (b) Customer provides reasonable co-operation to SegmentStream in the defence and settlement of such claim, at SegmentStream's reasonable expense; (c) SegmentStream is given sole authority to defend or settle the claim; and (d) except with SegmentStream’s prior written permission, Customer makes no admission and takes no action which would compromise SegmentStream’s defence or settlement of the claim or any counterclaim by SegmentStream.
2. In the defence or settlement of any claim, SegmentStream’s sole obligation (in addition to the payment of any judgment or settlement) shall be to: procure the right for the Customer to continue using the Products, replace or modify the Products so that they become non-infringing or, if such remedies are not reasonably available, terminate these Terms on two (2) Business Days’ notice to Customer, in which case SegmentStream shall repay to Customer any prepaid but unused Fees as at the date of termination, but without any additional liability or obligation to pay damages or other additional costs to Customer. Under no circumstances shall SegmentStream indemnify Customer or be liable to or on behalf of Customer beyond what is stated in the foregoing sentence.
3. Notwithstanding the foregoing, in no event, shall SegmentStream, or its employees, agents and sub-contractors, be liable to or obligated to defend Customer under clause 9.1 to the extent that the alleged infringement is based on: (a) a modification of the Products or Script by Customer without SegmentStream’s authorisation ; (b) Customer's use of the Products in a manner contrary to the terms of these Terms, or the adequate and reasonable instructions given to Customer by SegmentStream; or (c) any combination by Customer of services, software or other materials with the Products (including the Script) that have been adequately and promptly informed and notified to Customer by SegmentStream, to the extent the infringement relates to such combination. For the avoidance of doubt, SegmentStream’s indemnification obligations in clause 9 of these Terms will not apply to third-party content and/or Third-Party Products not authorized by SegmentStream and accessed through the Products and/or Additional Services.
4. The foregoing constitutes Customer’s sole and exclusive rights and remedies, and SegmentStream’s (including SegmentStream’s employees’, agents’ and sub-contractors’) entire obligations and liability to Customer, for infringement or alleged infringement of any patent or other Intellectual Property Right.

10. Limitation of Liability

1. This clause 10 sets out the entire financial liability of either party (including any liability for the acts or omissions of either party’s employees, agents or sub-contractors) to the other, including in respect of (a) any breach of any obligation (whether implied or express) arising out of or in connection with these Terms; (b) any use made by Customer or Authorised Users of the Products (including the Script) or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) or breach of statutory duty arising under or in connection with these Terms.
2. Except as might be otherwise provided in these Terms, Customer assumes sole responsibility (and SegmentStream shall have no liability) for (a) results obtained from the use of the Products by Customer and/or Authorised Users and for conclusions drawn from such use; (b) any damage caused by errors or omissions in any information, instructions or scripts provided to SegmentStream by Customer in connection with the Services; or (c) any content published on a Customer Site by, or with the approval of, Customer or any actions taken by SegmentStream at Customer's direction.
3. Except as might be otherwise provided in these Terms, subject to clause 10.4, neither party shall under any circumstances whatsoever be liable to the other for any: (a) loss of profits, revenues or opportunity costs; (b) loss of business or business opportunities; (c) loss or depletion of goodwill and/or similar losses or injuries; (d) loss or corruption of data or information (including Customer Data), subject to the DPA; (e) pure economic loss; (f) special, indirect, punitive or consequential loss, costs, damages, charges or expenses howsoever arising under these Terms.
4. Nothing in these Terms excludes the liability of either party for (a) death or personal injury caused by negligence; or (b) fraud or fraudulent misrepresentation; or (c) any other liability which may not be limited or excluded by applicable law.
5. Except as might be otherwise provided in these Terms, subject to clause 10.4, each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with these Terms or the performance or contemplated performance of these Terms shall be limited to 30% of the total Fees actually paid by Customer for the Products under the Order Form incorporated in these Terms during the 12 months immediately preceding the date on which the claim arose.

11. Term and Termination

1. Subject always to either party’s right to terminate pursuant to this clause 11: (a) these Terms shall commence on the Effective Date and shall continue for the Initial Subscription Term; and (b) after the Initial Subscription Term, these Terms shall automatically renew for a successive period of twelve (12) months (each a “Renewal Term”) unless the Customer has sent a notification about the cancellation of the agreement in written form no later (i) fifteen (15) days before the end of the Initial Subscription Term or (ii) sixty (60) days before the end of the Renewal Term. Termination shall be without reason, without restrictions, or penalties to the Customer and the Services and any licences granted thereunder will be automatically terminated at the end of the Initial Subscription Term or the ongoing Renewal Term as the case may be.
2. Without prejudice to any other rights or remedies which the parties may have, either party may terminate these Terms without liability to the other immediately on giving written notice to the other if: (a) (i) the other party is in material breach of these Terms where the breach is incapable of remedy; or (ii) the other party is in material breach of these Terms where the breach is capable of remedy and the breaching party fails to remedy that breach within thirty (30) days after receiving written notice of such breach; (b) the other party enters into an arrangement for an assignment for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or (c) any event analogous to those described in clause 11.2(b) above happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
3. On termination of these Terms for any reason: (a) all licences and other rights granted by SegmentStream under these Terms shall immediately terminate; (b) Customer shall immediately pay to SegmentStream all outstanding unpaid invoices and interest and, in respect of Products rendered but for which no invoice has been submitted, SegmentStream will submit an invoice, which will be payable by Customer immediately on receipt; (c) each party shall (and Customer shall procure that any applicable Authorised User shall), return or destroy as promptly directed by the other party and make no further use of any equipment, property, Confidential Information, the Products (including the Script) and other items (and all copies of them) belonging to the other party; (d) SegmentStream will have no further obligation to store and/or make available Customer Data and may delete the same at any time from and including the date thirty (30) days after the termination or expiry of these Terms, without further notice to Customer; and (e) the accrued rights of the parties as at termination, and clauses 1, 3.2, 3.4, 3.5, and 6 through 12, will survive any expiration or termination of these Terms.

12. General

1. Neither party shall have any liability to the other under or in connection with these Terms if it is prevented from, or delayed in performing, its obligations under these Terms or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control (a “Force Majeure Event”), including strikes, lock-outs or other industrial disputes (whether involving the workforce of either party to these Terms or any other party), failure of a utility service or transport network, act of God, war, riot, internet interruptions, civil commotion, malicious damage, compliance with any law or governmental order, rule, change in law, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. If a Force Majeure Event prevents, hinders, or delays a party’s performance of its obligations under these Terms for a continuous period of more than 6 months, either party may terminate these Terms immediately on written notice to the other party.
2. SegmentStream shall be permitted to identify Customer as a SegmentStream Customer on its website or other marketing materials and accordingly, Customer hereby grants to SegmentStream the right to use and display Customer’s name, logo and/or any other identifying words or marks associated with Customer, in whole or in part, and in any media for the sole purposes of identifying Customer as a customer of SegmentStream.
3. The parties are independent contracting parties and owe no fiduciary or other duties to each other except as set forth in these Terms and any Sales Order. Neither party has or will hold itself out as having any right, title, or authority to incur any obligation on behalf of the other party unless expressly authorised in writing to do so. The parties' relationship in these Terms shall not be construed as a joint venture, partnership, franchise, employment or agency relationship, or as imposing any liability upon either party that otherwise might result from such a relationship.
4. The Customer recognises that SegmentStream always seeks to innovate and find ways to improve the Products with new features and functions. Customer agrees that SegmentStream may therefore change the Products (i) without notice provided such changes do not materially adversely affect the nature or quality of the Products, or (ii) on written notice to the Customer where such changes will materially adversely affect the nature or quality of the Products, provided that Customer shall have the right to terminate the agreement on giving written notice to SegmentStream not more than one (1) month following any such change taking effect. Subject to the preceding sentence, no variation of these Terms shall be valid unless it is in writing and signed by or on behalf of each of the parties.
5. The Customer may submit feedback or ideas about the Products, including how to improve the Products or any other service offered by SegmentStream (“Feedback”). The Customer acknowledges that no further consideration is payable as a result of such Feedback, and that SegmentStream is free (but not obligated) to use the Feedback on a non-exclusive and non-confidential basis for any business purpose, during or after the Subscription Term.
6. A waiver of any right under these Terms is effective only if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy. Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
7. If any provision of these Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of these Terms, and the validity and enforceability of the other provisions of these Terms shall not be affected. If a provision of these Terms (or part of any provision) is found illegal, invalid, or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable.
8. These Terms, the Order Form(s), and any documents referred to in it constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter (including any Customer purchase orders). Each party acknowledges that, in entering into these Terms, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance, or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in these Terms. Each party represents and warrants that in entering into these Terms it has not relied upon any oral or written statements, collateral, or other warranties, assurances, representations, or undertakings (or the failure or omission of the other party to make statements, assurances, representations or undertakings) (together “Pre-Contractual Statements”) other than what is expressly set forth in these Terms. Each party waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements, including any claim it was induced into entering into these Terms or accepting its terms based on any Pre-Contractual Statements.
9. Neither party may assign any of its rights or obligations under these Terms without the prior written consent of the other party, except that either party may assign these Terms as a whole without such consent to an entity of good standing (other than any direct competitor of the other party) capable of complying with the rights and obligations under these Terms succeeding to all or substantially all of such assigning party’s assets or business.
10. A person who is not a party to this agreement shall not have any rights under or in connection with it. No third-party beneficiaries are created by these Terms.
11. All notices must be in English, in writing, addressed (a) in the case of SegmentStream to legal@segmentstream.com, and (b) in the case of Customer to the postal address or email address detailed in the Order Form, or such other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
12. These Terms, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the agreement, the Terms, or its subject matter or formation (including non-contractual disputes or claim).
13. The Products and Additional Services SegmentStream makes available, and any derivatives thereof, may be subject to export-control laws and regulations of the United Kingdom, the United States, and other applicable jurisdictions. Each party represents that it is not named on any U.K. or U.S. government denied-party, restricted, or sanctions list, including the U.S. Department of Commerce Denied Persons List and Entity List, the U.S. Treasury Specially Designated Nationals (SDN) List, and the U.K. Sanctions List. Customer shall not permit Authorized Users to access or use any Product or Additional Services:
    (a) in any jurisdiction subject to comprehensive U.K. or U.S. embargoes or sanctions, which currently include Cuba, Iran, North Korea, Syria, Russia, Belarus, and the Crimea, Donetsk, and Luhansk regions of Ukraine (and any other regions or countries as may be added or modified by U.K. or U.S. authorities from time to time); or
    (b) in violation of any U.K. or U.S. export-control, re-export, or sanctions laws, including restrictions relating to destination, end-user, and end-use.

Exhibit A — Support Contacts

1. Customer will appoint up to three (3) designated support contact persons knowledgeable regarding the Products and Additional Services (the “Designated Contacts”) for purposes of contacting SegmentStream’s support team about technical support issues with the Products and Additional Services, including reporting such issues via SegmentStream’s designated support portal/channel.
2. The commitments under this exhibit do not apply to customisations, enhancements, or other non-standard modifications to the Products or Additional Services requested or made by the Customer.

Exhibit A — Support for Customers

1. Response Times: SegmentStream bases its response times and the actions it takes to resolve problems on an assessment of the impact of the reported technical issue. The more serious the impact, the higher the assigned priority. For all support issues relating to the Customer, SegmentStream will respond in accordance with Table 1:

Table 1

Exhibit A — Issue Severity Levels

1. P1: Mission Critical. Critical issue affecting all users of the Customer Site, including system unavailability and data integrity issues with no workaround available
2. P2: Urgent. Essential services are significantly degraded and/or impacting significant aspects of the Customer Site. The issue is persistent and affects many users and/or major functionality. No reasonable workaround is available.
3. P3: Important. Services are noticeably impaired, but most business operations continue as normal. Some but not all users are affected. A short-term workaround is available, but not scalable.
4. P4: Minor. The support request consists of "how to" questions, enhancement requests, or documentation questions. This may include routine technical issues, information requested on application capabilities, navigation, installation, or configuration, or a bug affecting a small proportion of users on the Customer Site.
5. Assignment of Severity Levels: SegmentStream will determine the Severity Level assigned to each support issue at its reasonable discretion, but taking into consideration the Severity Level input or suggested by the Customer.
6. Notification: The Customer must use the SegmentStream Help Desk to submit problem reports and SegmentStream shall provide technical support and answer specific information requests in the manner set out below. The Customer understands that SegmentStream will only provide support via the SegmentStream help desk in accordance with this SLA. In the event that the Customer experiences any problem with respect to the Products that is not caused by a Permitted Downtime, the Customer may notify the SegmentStream Help Desk team (see SegmentStream Help Desk Information above). Such notification of the problem must include a clearly written description of the problem(s) and any steps that the Customer can reasonably identify that would allow SegmentStream to replicate the problem(s). The problem shall be promptly logged upon SegmentStream's receipt of clear notification of the problem. SegmentStream shall, at all times acting reasonably and in good faith, assign a priority, generally following the classifications found in Table I above, and SegmentStream shall use commercially reasonable endeavours to respond to the problem in accordance with the timeframes set forth in Table I. SegmentStream shall not re-assign a priority of a problem without the prior written consent of Customer.

1. Case Priority P1 and P2 Response and Resolution: SegmentStream shall confirm to Customer receipt of the request within the Request Response Time of such a request. If a Case Priority P1 or P2 request cannot be corrected within the Resolution Time after the Customer makes the initial request for support, SegmentStream will: (a) immediately escalate to more senior stakeholders within SegmentStream’s engineering or Customer Success team, as appropriate; (b) take and continue to take the actions which will most expeditiously resolve the request; and (c) provide regular reports to the Customer of the steps taken and to be taken to resolve the request, the progress to correct, and the estimated time of correction until the request is resolved.
2. Case Priority P3 and P4 Response and Resolution: SegmentStream shall confirm to Customer receipt of the request within the Request Response Time of such a request. If a Case P3 or P4 request cannot be corrected within the Request Resolution Time after the Customer makes the initial request for support, SegmentStream and Customer will mutually agree upon a schedule within which to resolve the request.
3. Resolution of issues. Resolution of a technical support issue is defined as accomplishing any one of the following: (i) providing a reasonable solution to the issue; (ii) providing a reasonable work-around to the issue; (iii) determination by SegmentStream that the issue is an enhancement request and forwarding the request to SegmentStream Products Management for future consideration; or (iv) escalation by SegmentStream Client Care of the incident/product defect to SegmentStream Engineering for review. SegmentStream Client Care will make reasonable efforts to resolve the issue but SegmentStream cannot guarantee that every issue will be resolved.
4. Remedies for Breach: If SegmentStream fails to meet the Response Time Commitments in Table 1 above, the Customer’s exclusive remedy and SegmentStream’s sole obligation will be for SegmentStream to make commercially reasonable efforts to respond to the issue promptly after the Customer notifies SegmentStream that it failed to meet the Response Time Commitment. If SegmentStream fails to meet the relevant Resolution Time commitments for any issue not caused by Permitted Downtime five (5) times during a calendar month, The Customer’s exclusive remedy and SegmentStream’s sole obligation will be for the Customer to terminate the applicable Order Form and receive a refund, on a pro-rata basis, of any Subscription Fees paid by the Customer that are unused as of the termination effective date. Customer is obligated to deploy SegmentStream’s software in accordance with SegmentStream’s documentation, including the Software Development Kit (SDK), proper Data Warehouse integration, and other instructions provided by SegmentStream’s onboarding team. Any deviations from the provided documentation, adjustments, or modifications that do not follow the instructions are prohibited. If Customer resists following the provided documentation or fails to deploy the software correctly, SegmentStream reserves the right to halt the onboarding process and the development of attribution models until the issues are resolved to its satisfaction. In the event that Customer is unable or unwilling to proceed with the deployment for any reason, whether due to internal political factors or decisions made by employees who choose to implement their own approach, all fees paid to SegmentStream will remain non-refundable.

Exhibit A — Uptime Commitment

1. Data Collection. The target Uptime Percentage for Data Collection shall be Ninety Nine Percent (99%) (the “Uptime Commitment”). Subject to the exclusions described in Section III (3) below, the “Uptime Percentage” shall be calculated by subtracting from 100% the percentage of 1-minute periods during any quarterly cycle (i.e., 3 calendar months) in which the Customer’s ability to use the Network to permit collection of Customer Data is Unavailable out of the total number of minutes in that quarterly cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all data collection requests from the Customer Site were unsuccessful (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1-minute period (e.g. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Uptime Percentage for Data Collection shall be measured based on the industry standard monitoring tools SegmentStream uses.
2. User Interface. The target Uptime Percentage for User Interface shall be Ninety Nine Percent (99%) (the “Uptime Commitment”). Subject to the exclusions described in Section III (3) below, the “Uptime Percentage for User Interface” is calculated by subtracting from 100% the percentage of 1-minute periods during any quarterly cycle (i.e., 3 calendar months) in which the Customer’s ability to access the SegmentStream online user interface is Unavailable out of the total number of minutes in that quarterly cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests made by the Customer to access the SegmentStream online user interface were unsuccessful (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1-minute period (e.g. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Uptime Percentage for User Interface shall be measured based on the industry standard monitoring tools SegmentStream uses.
3. Notification of Downtime: The Customer shall, in order to be eligible for any service availability credits as set forth in this Section III, notify SegmentStream in writing about any Failed Connection within ten (10) days of experiencing such downtime.

Exhibit A — Exclusions from Uptime Percentage

Exhibit A — Service Credits

1. If SegmentStream does not meet the Uptime Commitment with respect to any particular calendar quarter (i.e., the actual Uptime Percentage was below 99.0%), and Customer is negatively impacted thereby, then as Customer’s sole and exclusive remedy, and only upon Customer’s written request in accordance with this Section III, SegmentStream will provide to Customer a service credit (“Service Credit”) pursuant to Table 2 below:

Table 2

1. The Service Credit shall be calculated against the quarterly fees due to SegmentStream, which shall be calculated by dividing the annual Subscription Fees (as further described on the Order Form) by four (“Quarterly Fees”), and shall be deducted against future fees.
2. Subject to the termination rights set forth in the Terms, any credits provided pursuant to this SLA will constitute SegmentStream’s sole liability and Customer’s sole and exclusive remedy for any failure to achieve the Uptime Percentage. Failure to achieve the Uptime Commitment shall result in the Service Credit Percentage applicable to each Product, subject to a maximum cumulative Service Credit Percentage of 33% of total Quarterly Fees (regardless of the number of individual service failures in the applicable month). In the event that the actual Uptime Percentage is less than 90.0%, SegmentStream will be deemed to be in material breach of the Terms.
3. Service Credit Process: To receive a Service Credit, the Customer must submit a request by sending an email to legal@segmentstream.com. To be eligible, the credit request must: (a) include the dates and times of each Unavailability incident that the Customer claims to have experienced, along with sufficient details to enable SegmentStream to verify the information; and (b) be received by SegmentStream within ten (10) Days after the last Failed Connection that is part of Customer’s Service Credit claim. If The Customer is past due with respect to any payment obligation, or otherwise in material breach of any contractual obligation to SegmentStream, the Customer is not eligible for any Service Credits. Service Credits will be issued to the Customer within sixty (60) days after SegmentStream confirms that the Customer qualifies for the Service Credit under this clause.

Exhibit A — Definitions