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Pyze Service Terms

Last update: May 15, 2018

YOUR USE OF THE PYZE® GROWTH INTELLIGENCE® PLATFORM (“PYZE”) IS SUBJECT TO YOU AGREEING TO THESE TERMS AND CONDITIONS (THESE “TERMS”). IF YOU (“PARTICIPANT”) DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT USE THE SERVICES.

1. DEFINITIONS

1.1 Application means an application or app for a digital device developed by Participant that incorporates the Software or otherwise makes use of the Service.

1.2 Documentation means any documentation or information provided or made available by Pyze to Participant under this Agreement.

1.3 Platform means the Pyze Growth Intelligence Platform, including the Software and the Service.

1.4 Software means any software provided or made available by Pyze to Participant under this Agreement to use in connection with the Service.

2. GRANTS AND RESTRICTIONS

2.1 License and Access Rights Grant. Subject to the terms and conditions of this Agreement, Pyze hereby grants to Participant a limited, non-exclusive, nonsublicenseable, nontransferable, royalty-free license during the term of this Agreement to: (a) use a reasonable number of copies of the Software in strict accordance with the Documentation solely to integrate with Applications; (b) reproduce the Software solely as a component of an Application; (c) distribute the Software only in object code format solely as a component of an Application; and (d) access the Service to test the Platform.

2.2 Restrictions. The licenses granted to Participant in this Agreement do not include any right to, and Participant will not: (a) modify the Documentation, change any of the interfaces described in the Documentation, or extend any interfaces except as described in the Documentation; (b) implement the Software in any software other than an Application or to support any interfaces between computing devices or computing functions; (c) modify, translate, or create a derivative work of any portion of the Platform except for the limited right to use the Software with an Application as expressly set forth in Section 2.1; (d) sell, lease, loan, provide, distribute or otherwise transfer any portion of the Platform to any third party except for the limited right to distribute the Software as expressly set forth in Section 2.1; (e) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of the Platform and except to the extent permitted by applicable law; (f) display or disclose any portion of the Platform to any person except to Participant’s employees and contractors who are required to use the Platform in order for Participant to develop the Application and except for the limited right to distribute the Software as expressly set forth in Section 2.1; (g) remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Platform; (h) use the Platform to create or develop any software (including without limitation an Application) that can be used with any product other than an Application; (i) create or develop any software (including an Application) that exposes or discloses the Software to end users; (j) interfere with the normal operation of the Platform; (k) release or otherwise commercially distribute to third parties any Application that is not fully compatible with the Platform; (l) disable or circumvent any license key or other security features of the Platform; or (m) cause or permit any third party to do any of the foregoing.

2.3 No Warranties. Participant must not make any representation or any express or implied warranty to third parties (including, without limitation, to any end users) on behalf of Pyze.

2.4 Open Source Restriction. Nothing in this Agreement authorizes Participant to subject any portion of the Platform or any Pyze intellectual property right in any portion of the Platform to the terms of any “open source” license, including a license that requires, as a condition of use, modification, or distribution of technology subject to such license, that such technology or other technology combined or distributed with such technology: (a) be disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be re distributable at no charge.

2.5 Privacy Policy. Participant’s distribution of any Application to any third party must be subject to a published Participant privacy policy that complies with all applicable laws and accurately discloses to end users Participant’s practices regarding collection, use and disclosure of end user information from the Application (“Privacy Policy”). Participant acknowledges and agrees that use of the Service is subject to Pyze’s Privacy Policy available at https://pyze.com/privacy/. Pyze’s Privacy Policy does not cover Participant Apps or the use of such Apps by your end users. Participant further acknowledges that their Privacy Policy shall be in compliance with applicable self-regulatory guidelines, including, without limitation each of the Self-Regulatory Principles of the Digital Advertising Alliance (“DAA”), currently available at http://www.aboutads.info/principles, and the Principles of the European Interactive Digital Alliance (“EDAA”), currently available at http://www.edaa.eu/european-principles/, as each set of principles may be amended from time to time.

2.6 Availability. Pyze does not guarantee that it will continue to make available or support the Platform and Pyze at its sole discretion may change Platform pricing in the future.

2.7 Privacy and Data Rights. Participant will comply with all laws and regulations applicable to business and operations and to the use of the Services, including laws governing the privacy, security and trans-border transfers of personally identifiable information (“PII”) (including, but not limited to, compliance with the General Data Protection Regulation (EU 2016/679) (the “GDPR”)). Where required, Participant shall be responsible for collecting verifiable consent (as defined under the GDPR), and for collecting parental consent as required under applicable law as to children under 13 (and in certain jurisdictions under 16), related to any PII collected, used, maintained, and shared with Pyze, or directed Pyze to share with any third party; and that Participant otherwise has any and all rights required in order to provide such data to Pyze or to direct Pyze to share it with any third party; and that any such data was properly obtained in accordance with applicable law, including laws restricting data processing with respect to children. To the extent that any of Participant users request that their data not be shared with Pyze, Participant commits to inform Pyze immediately or make available Pyze SDK APIs to enable Users to opt-out of data collection or to request that erasure of User identity in the Pyze system.

Participant grants Pyze the license to collect anonymized usage data from applications and devices monitored by Pyze to identify opportunities for improving the business performance of the application being monitored, advancing market research, developing new data and analytics products and services, providing personalized experiences and meaningful offers to app end users.

2.8 Feedback. If Participant provides any feedback to Pyze concerning the functionality and performance of any portion of the Platform (including identifying potential errors and improvements), Participant hereby assigns to Pyze all right, title, and interest in and to the feedback, and Pyze is free to use the feedback without payment or restriction.

2.9 Reservation of Rights. All rights not expressly granted in this Agreement are reserved. No additional rights whatsoever (including, without limitation, any implied licenses) are granted by implication, estoppel or otherwise.

3. DELIVERY, SUPPORT, AND CERTIFICATION

3.1 Delivery of Software. Upon the acceptance of this Agreement, Pyze will make available a copy of the Software to Participant. Pyze may, in its sole discretion, provide replacements, updates, modifications, or bug fixes for the Software to Participant during the term of this Agreement (“Updated Software”). All Updated Software will be deemed part of the Software and subject to the terms of this Agreement. Modified or merged portions of the Software will be deemed part of the Software and subject to the terms of this Agreement. Participant will ensure that, prior to commercially releasing any Application, each Application will be fully compatible with the most recent Updated Software and then-current version of the Platform, if any.

3.2 Support. Pyze may, in its sole discretion, provide Participant with assistance related to the Platform and the development of Applications. Pyze is not obligated to provide support or other services under this Agreement.

4. TERM AND TERMINATION

4.1 Term. The term of this Agreement will commence on the Date this agreement is accepted by Participant and continue in effect until the earlier of (a) the date Pyze terminates the Program, as will be communicated by Pyze to Participant in writing, or (b) the date the Agreement is otherwise terminated in accordance with the provisions of this Agreement.

4.2 Termination. Participant may terminate this Agreement at any time upon written notice to Pyze. Pyze may terminate this Agreement: (a) immediately upon written notice, if Participant is in material breach of Section 2; (b) if Participant otherwise materially breaches this Agreement and fails to cure the breach within 30 days after Participant receives notice of the breach from Pyze; or (c) immediately, if Participant asserts any claim of intellectual property infringement against Pyze based on patents or other intellectual property reading on any portion of the Platform. Upon termination, Participant’s licenses under this Agreement will end and Participant will cease all use of the Platform and will return or destroy all copies of the Software and all portions of the Software in its possession or control.

4.3 Survival. Sections 1, 2.2, 2.3, 2.5, 2.9, 4.2, 4.3, 5, 6, 7, and 8 will survive any termination of this Agreement. Licenses granted prior to the termination of this Agreement by Participant to end users for Applications in accordance with the terms of this Agreement will survive any termination of this Agreement.

5. REPRESENTATIONS AND DISCLAIMERS OF WARRANTY

5.1 Representations. Participant represents and warrants that: (a) the person accepting this Agreement on its behalf has all necessary power and authority to do so, and that upon such acceptance, this Agreement is a binding obligation upon it; (b) the acceptance of this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary action on its part; (c) this Agreement constitutes a valid and binding obligation on the party that is enforceable in accordance with its terms; and (d) Participant will comply with all applicable laws in connection with its use of the Platform and distribution of Applications as permitted under this Agreement.

5.2 DISCLAIMERS. Participant understands and acknowledges that the Platform is a pre-release test product and its accuracy and reliability are not guaranteed. Pyze makes no warranties of any kind with respect to the Platform. Owing to its experimental nature, Participant agrees not to rely on the Platform for any reason. Participant waives any and all claims it may have against the Company arising out of the performance or nonperformance of the Platform. THE PLATFORM AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY PYZE UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. PYZE DISCLAIMS ALL WARRANTIES DUTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE PLATFORM AND RELATED INTELLECTUAL PROPERTY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT.

6. LIMITATION OF LIABILITY

NEITHER PYZE NOR ITS SUPPLIERS WILL BE LIABLE TO PARTICIPANT OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF PYZE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIMITATIONS SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF ANY LIMITED REMEDY IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

7. INDEMNITY

Participant will indemnify, defend and hold Pyze and its affiliates, officers, directors, suppliers, licensors, and other customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Participant’s Applications, Participant’s use or misuse of any portion of the Platform, any claims from Participant’s customers or users relating to the Application (including claims arising from breach of the Privacy Policy), Participant’s violation of this Agreement, or any applicable law or regulation.

8. MISCELLANEOUS

8.1 Confidentiality. The Platform (including any portion of the Platform that is implemented or embodied in any Application) are the confidential and proprietary information of Pyze, and Participant may not, during the term or thereafter, disclose them to any third party, or to use them for any purpose other than as expressly provided in this Agreement, without a separate written agreement with Pyze authorizing Participant to do so. Participant will maintain the confidentiality of and not disclose to any third party: (a) the terms of this Agreement; (b) all non-public information disclosed by Pyze to Participant under this Agreement; and (c) all feedback, performance data, and all other information obtained through evaluation and use of the Platform.

8.2 No Partnership, Joint Venture or Franchise. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.

8.3 Notices. All notices in connection with this Agreement will be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mail, postage prepaid, certified or registered, return receipt requested, and addressed either to Participant or to Pyze at the addresses specified in this Agreement, or to such other address as a party may designate pursuant to this notice provision.

8.4 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California without reference to its choice of law rules that would result in the application of the laws of another jurisdiction.

8.5 Assignability. Participant may not assign or otherwise transfer (whether by operation of law, due to a change of control or otherwise) any of its rights, duties, or obligations under this Agreement without Pyze’s prior written consent. Pyze may assign this Agreement freely. Any assignment in violation of this Section 8.5 is null and void.

8.6 Construction. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Participant under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Failure by a party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

8.7 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding the subject matter of this Agreement. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being accepted.

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