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Segment Premium Online Terms of Service - 2019
This page provides an archive of previous versions of the Segment Premium Online Terms of Service. If you have any questions, please contact the Segment Legal team.
Last Updated June 22nd, 2019 Effective June 22nd, 2019 to December 18, 2019.
SEGMENT PREMIUM ONLINE CUSTOMER AGREEMENT
This Segment Premium Online Customer Agreement (“Agreement”) is entered into by and between Segment.io, Inc. (“Segment”) and the entity or person placing an order for or accessing the Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any Segment Order Form (as defined below). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Modifications: You acknowledge and agree that Segment may modify the terms and conditions of this Agreement in accordance with Section 14 (Modifications to Agreement).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. SEGMENT SERVICES. Segment offers a suite of Services for data integration, data governance and audience management, as further described below and in the Documentation.
1.2. Additional Services. If included on an Order Form, Customer may also receive access to additional Segment services that may be used with Connections (e.g. Personas or Protocols). The features of any additional services are further described in the applicable Order Form. For clarity, any additional services are considered part of the Services for purposes of this Agreement.
“Customer Data” means any data that Customer submits to the Services, including data that it collects from Customer Properties or retrieves from other Sources through the Services, including as may be incorporated in any Customer reports or output generated by the Services. Customer Data does not, however, include any Segment or third-party templates, technology or data.
“Documentation” means the end user technical documentation provided with the Services, as may be modified from time to time.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Order Form” means any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”), or other financial account numbers or credentials; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) social security numbers, driver’s license numbers or other government ID numbers; (iv) any information deemed to be “special categories of data” of an EU resident (as defined in European Union Regulation 2016/679); or (v) other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or similar foreign or domestic Laws.
“Service(s)” means the specific Segment proprietary hosted service(s) (e.g. Connections, Protocols, Personas) specified on an Order Form, including any related Segment dashboards, APIs and Segment Code. “Services” do not include Technical Services.
“Technical Services” means premium support, implementation or other technical services provided by Segment, as set forth in an Order Form.
1.4. Provision of the Services. The Services are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Customer shall purchase and Services (as further described in Section 9 below) as specified in the applicable Order Form.
1.6. Use Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) use the Services to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Segment); (e) copy, modify or create any derivative work of the Services or any Documentation;
(f) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (g) publicly disseminate performance information regarding the Services.
1.7. Storage and Processing of Customer Data. Segment may store certain Customer Data submitted from Sources to enable various features and functionality of the Services, including for “replay” and re-sending of Customer Data to Destinations at Customer’s direction. Customer acknowledges that Customer Data transmitted through the Services may be stored and processed by Segment in the United States or in other countries as approved or directed by Customer (e.g., through Customer’s selection of a regional option through the Services). For clarity, nothing in this Section 1.7 prohibits Segment from transmitting Customer Data to Customer’s designated Destinations as part of the Services.
1.8. Beta Releases. From time to time, Segment may grant Customer access to “alpha”, “beta”, or other early-stage products (" Beta Releases“). While Segment may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN”AS IS" AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, OR SERVICE LEVEL OBLIGATIONS OF ANY KIND. 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 SEGMENT WILL NOT BE RESPONSIBLE. Segment makes no promises that future versions of a Beta Release will be released. Segment may condition Customer’s access to certain Beta Releases on Customer’s agreement to additional Beta Release terms and conditions. Segment may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in Segment’s sole discretion, without liability.
2. Customer OBLIGATIONS
2.1. Data Collection. Subject to this Agreement and as further described in the Documentation, Customer may configure the Customer Data elements to be collected from Sources and shared with different Destinations. In some instances, as referenced in the Services dashboard and Documentation, enabling a third-party Destination involves implementing the third-party provider’s own SDK or code on Customer Properties. As a result, in these cases, certain default data designated by that Destination’s provider may be sent directly to Customer’s accounts with that Destination, rather than passing through the Services.
2.2. Rights in Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Segment that (1) Customer will comply with all applicable Laws in its use of the Services (including, if applicable, the California Online Privacy Protection Act, European Union Regulation 2016/679 and similar Laws governing cross-site tracking or automated decision-making) and (2) Customer has provided all disclosures and obtained all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting Segment the rights in Section 4.1 and Customer’s building, tracking, using or sharing of any user profiles, traits or audiences), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or
(iii) any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Services with any Source or Destination, Customer authorizes Segment to access Customer’s accounts with such Source or Destination for the purposes described in this Agreement. In addition, in order to provide the Services to Customer and improve Segment’s integrations with Sources and Destinations, Segment may also disclose Customer’s status as a Segment customer and related Technical Services data to the providers of Customer’s Sources and Destinations.
2.3. No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Segment is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services is neither HIPAA nor PCI DSS compliant. Segment shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
2.4. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Segment from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any Customer Data or breach or alleged breach by Customer of Sections 2.2 (Rights in Customer Data) or 2.3 (No Sensitive Personal Information). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and
(iii) all reasonably necessary cooperation of Segment (at Customer’s expense for reasonable out-of-pocket costs).
3. SECURITY. Segment agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Services or Customer Data, as further described in Segment’s Information Security Policy However, Segment shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Segment’s control.
4.1. Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Segment. Subject to the terms of this Agreement, Customer hereby grants to Segment a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer during the Subscription Term.
4.2. Segment Technology. This is a subscription agreement for access to and use of the Services. Customer agrees that Segment or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation, Technical Services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Services or any Segment technology are granted to Customer.
4.3. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Segment product or service to Segment (“Feedback”). Segment may freely use or exploit Feedback in connection with any of its products or services.
4.4. Usage Data. Segment may generate Usage Data to operate, improve, analyze and support the Services, for benchmarking and reporting and for Segment’s other lawful business purposes. However, Segment will not disclose Usage Data externally, including in benchmarks or reports, unless it has been (1) de-identified so that it does not individually identify Customer, its Permitted Users, users of the Customer Properties or any other person or entity and (2) aggregated with usage data across other Segment customers. “Usage Data” means Segment’s technical logs, data and learnings about Customer’s use of the Services (e.g., frequency of logins, volume of Customer Data collected or sent to Destinations). For clarity, Usage Data does not include Customer Data.
5. FEES AND PAYMENT
5.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional twelve (12) month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
5.2. Fees and Payment. All fees are as set forth in the applicable Order Form and shall be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 7 (Limited Warranty), Section 11 (Indemnification), Section 14 (Modifications) and the Service Level and Support Policy, all fees are non-refundable. Segment reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5.3. Taxes. Segment’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that Segment is solely responsible for taxes assessable against Segment based on Segment’s net income, property, and employees. If any deduction or withholding is required by law, Customer shall notify Segment and shall pay Segment any additional amounts necessary to ensure that the net amount that Segment receives, after any deduction and withholding, equals the amount Segment would have received if no deduction or withholding had been required.
5.4. Overages. If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, Segment reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.
6. TERM AND TERMINATION; SUSPENSION
6.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
6.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) 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).
6.3. Suspension of Services. Without limiting Segment’s termination or other rights hereunder, Segment reserves the right to suspend Customer’s access to the Services (and any related services) in whole or in part, without liability to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Sections 1.6 (Use Restrictions) or 3 (Customer Obligations); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Services. When practicable, Segment will use reasonable efforts to provide Customer with advance notice of the suspension (email sufficing). Unless this Agreement has been terminated, Segment will cooperate to restore Customer’s access to the Services promptly after Segment verifies that Customer has resolved the issue requiring suspension.
6.4. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Services (including any and all related Segment technology), cease distributing any Segment Code installed on Customer Properties, and delete (or, at Segment’s request, return) any and all copies of the Documentation, any Segment passwords or access codes and any other Segment Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Services, and that Segment may delete any such data as may have been stored by Segment at any time. Upon any expiration or termination of this Agreement, Segment shall delete all Customer Data within sixty (60) days after receipt of Customer’s written request. Notwithstanding the foregoing, Customer understands that Segment may retain copies of Customer Data in regular backups or as required by Laws, which will remain subject to the security standards in Section 3 (Security). Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
6.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.5 (Use Restrictions), the disclaimers in Section 81. (Beta Releases), 2.4 (Indemnification by Customer), 4 (Ownership), 5 (Fees and Payment), 6 (Term and Termination; Suspension), 7.2 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 11 (Indemnification), 12 (Confidential Information), 14 (Modifications to Agreement) and 15 (General Terms).
7. LIMITED WARRANTY
7.1. Limited Warranty. Segment warrants, for Customer’s benefit only, that the Services will operate in substantial conformity with the applicable Documentation. Segment’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Segment to use commercially reasonable efforts to correct the reported non-conformity, or if Segment determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to Beta Releases or any use of the Service provided on a no-charge or evaluation basis.
7.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, THE SERVICES, TECHNICAL SERVICES and ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER SEGMENT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Segment does not warrant that Customer’s use of THE SERVICEs will be uninterrupted or error-free, nor does Segment warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND SEGMENT TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. CUSTOMER UNDERSTANDS THAT IT IS RESPONSIBLE FOR PUTTING IN PLACE ANY CONTRACTUAL ARRANGEMENTS WITH DESTINATIONS REQUIRED BY LAWS. Segment SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Segment. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
8. Service Levels and support. During the Subscription Term, the Services will be subject to the Service Level and Support Policy described at here.
9. TECHNICAL SERVICES Any purchased Technical Services will be as described in the relevant Order Form, subject to the fees and any additional terms in the Order Form. Customer will reimburse Segment for reasonable, pre-approved travel and lodging expenses incurred in providing Technical Services. For prepaid Technical Services, unless specified in the Order Form, Customer is paying for the availability and efforts of Segment personnel over the time period specified in the Order Form (e.g., up to eight hours in a week); any unused time expires at the end of such period (or at maximum, six (6) months after purchase) and may not be banked, accumulated or saved for future periods or purchases. To facilitate Technical Services, Customer will provide Segment with access to reasonably requested Customer Materials and cooperation and will designate an internal project manager to serve as Segment’s single point of contact. If Customer fails to do so, Segment’s obligation to provide Technical Services will be excused until Customer does. Segment will use Customer Materials only for purposes of providing Technical Services. If Segment provides deliverables as part of Technical Services, Customer may use the deliverables only as part of its authorized use of the Services, subject to the same terms as for the Services in Section 1 (Segment Services) and Section 2 (Customer Obligations).
10. Limitation of Remedies and Damages
10.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO SEGMENT DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
10.3. Excluded Claims. “Excluded Claims” means (a) any claim arising from Customer’s breach of Sections 1.5 (Use Restrictions), 2.2 (Rights in Customer Data) or 2.3 (No Sensitive Personal Information); or (b) any amounts payable to third parties pursuant to Customer’s indemnification obligations under Section 2.4 (Indemnification by Customer) or Segment’s indemnification obligations under Section 11 (Indemnification).
10.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 10 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11. INDEMNIFICATION. Segment shall defend Customer from and against any claim by a third party alleging that the Services when used as authorized under this Agreement infringes a U.S. patent or any copyright or trademark and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Segment (including reasonable attorneys’ fees) resulting from such claim, provided that Segment has received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Segment to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation of Customer (at Segment’s expense for reasonable out-of-pocket costs). If Customer’s use of the Services is (or in Segment’s opinion is likely to be) enjoined, if required by settlement or if Segment determines such actions are reasonably necessary to avoid material liability, Segment may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Services; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Segment. The foregoing indemnification obligation of Segment shall not apply: (1) if the Services are modified by any party other than Segment, but solely to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with products or processes not provided by Segment, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within the Services; (5) if Customer settles or makes any admissions with respect to a claim without Segment’s prior written consent; or (6) to Beta Releases or any use of the Service provided on a no-charge or evaluation basis. THIS SECTION 11 SETS FORTH Segment’s AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
12. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Segment technology, performance information relating to the Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of Segment without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Segment, the subcontractors referenced in Section 15.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
13. CO-MARKETING. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on Segment’s web site and in Segment promotional materials. Customer agrees that Segment may disclose Customer as a customer of Segment.
14.1. Modifications to this Agreement. Segment may modify the terms and conditions of this Agreement (including Services pricing and plans) from time to time, with notice to Customer in accordance with Section 15.5 (Notice). The modifications will take effect upon Customer’s next Order Form or renewal unless Segment specifies otherwise (e.g., to account for new features or changes in law). If Segment specifies that the modification will take effect during Customer’s then-current Subscription Term and Customer objects to the modifications in writing, then Segment (at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Services for the terminated portion of the applicable Subscription Term. To exercise this right, Customer must notify Segment of its objection within thirty (30) days of Segment’s notice of the modifications.
14.2. Changes to Policies. In addition, Segment may modify the Service Level and Support Policy and Information Security Policy from time to time to reflect process improvements or changing practices (but the modifications will not materially decrease Segment’s obligations as compared to those in such policies as of the Effective Date). Policy modifications will apply automatically on the effective date specified by Segment and the Customer objection procedures above will not apply.
15. GENERAL TERMS
15.1. 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 either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities (any of the foregoing, a “Change of Control”). Notwithstanding the foregoing, with respect to any Change of Control by Customer: (a) Customer shall provide written notice to Segment of any such Change of Control either before or within five (5) days after its taking effect, and (b) the assignee agrees in writing to assume all of the obligations of Customer under this Agreement. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 15.1 will be null and void.
15.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
15.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
15.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
15.5. Notice. Any notice or communication to Segment that is required or permitted under this Agreement shall be in writing to Segment at the address set forth in Section 15.6 (Segment Contact Information) below or at such other address as directed by Segment, and shall be deemed to have been received by Segment (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. Segment may send notices to Customer through Customer’s email on file or through the Services. All notices given to Customer shall be deemed to have been received by Customer upon delivery.
15.6. Segment Contact Information. Any Customer questions, complaints or claims regarding the Services should be sent to the following address:
100 California Street, Suite 700
San Francisco, CA 94111
15.7. Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
15.6. Entire Agreement; Interpretation. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. In this Agreement, headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Segment may make changes to the Services, and Segment will update the applicable Documentation accordingly.
15.7. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
15.8. Subcontractors. Segment may use the services of subcontractors and permit them to exercise the rights granted to Segment in order to provide the Services and Technical Services under this Agreement. These subcontractors may include, for example, Segment’s hosting, infrastructure and CDN providers. Segment remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Services as required under this Agreement.
15.9. Subpoenas. Nothing in this Agreement prevents Segment from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Segment shall use commercially reasonable efforts to notify Customer where permitted to do so.
15.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.11. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
15.12. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of 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 Services were developed fully at private expense. All other use is prohibited.