End User License Agreement

Demandbase End User License Agreement (“Agreement”)

 

(Updated December 11, 2018)
 

INTRODUCTION:
This Agreement sets forth the terms and conditions applicable to Demandbase’s proprietary, software-as-a-service platform and related products, services, and support. The Demandbase platform provides marketing and advertising technology known as Account-Based Marketing (ABM), and is licensed on a subscription basis.

USE OF THE DEMANDBASE PRODUCTS AND SERVICES IS GOVERNED BY THE TERMS OF THIS AGREEMENT:

Definitions.

“Affiliate” means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such first entity.

“Control” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Customer” shall mean the entity signing this Agreement.

“Demandbase” shall mean Demandbase, Inc., or one of its subsidiaries, in accordance with Section IX below.

“Demandbase ABM Platform” shall mean Demandbase’s hosted software technology platform and related solutions (such as the Targeting Services, engagement, and conversion).

“Implementation Services” shall mean any services related to the implementation or management of the Demandbase ABM Platform as more specifically described in the applicable Order Form.

“Intellectual Property Rights” means, on a worldwide basis, all patents (including originals, divisionals, continuations, continuations-in-part, extensions, foreign applications, utility models and re-issues), patent applications, copyrights (including all registrations and applications therefore), trade secrets, service marks, trademarks, trade names, trade dress, trademark applications and other proprietary and intellectual property rights, including moral rights.

“Sensitive Information” means any information that may be considered sensitive under law or may create additional obligations under law, including but not limited to, genetic, biometric, health data, political, religious, financial, or other such personal information.

“Services” means the Demandbase ABM Platform and related solutions, Targeting Services, Services Data, and any Upgrades.

“Services Data” means the data used to provide the Services, utilizing the Website Data, and the proprietary mapping of the Website Data to companies, segments, and company attributes (including but not limited to company name, industry, revenue) (“Firmographic Data”), of which the Firmographic Data is delivered to Customer as part of the Services.

“Targeting Services” shall mean account-based advertising as more specifically described in the applicable Order Form.

“Third Party Application” means a Web-based software process or functionality that is provided by Customer or a third party and interoperates with the Services including, for example, an application that utilizes Demandbase’s Application Programming Interface (“API”).

“Upgrades” means any software updates, upgrades, bug fixes, modifications, supplements, enhancements, or new versions or releases of the Services made generally commercially available.

“Website Data” means the data collected by the Services through Customer’s website, including but not limited to IP address, cookies, and non-personal data.

I. STRUCTURE OF THE AGREEMENT

A. Scope of the Agreement.
This End User License Agreement is subject to an order form between Customer and Demandbase or a Demandbase authorized reseller (“Order Form”) and any applicable appendices, linked terms, and policies, such as the Ads Policy and DPA (collectively, the “Agreement”). In the event of a conflict between the terms, then the terms will apply in the following order: DPA, Order Form, Agreement, and any policies. Customer Affiliates may also procure Services by entering into an Order Form referencing this Agreement.

II. INTELLECTUAL PROPERTY RIGHTS

A. License.
A. Demandbase hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license to use the specific Services identified in the Order Form for Customer’s internal business purposes, for the term specified in the applicable Order Form, and for the root domain(s) identified in the Order Form (example http://www.subroot.rootdomain.com/), subject to the terms of this Agreement and the applicable Order Form. Demandbase reserves all rights, title, and interest in and to the Services, including all related Intellectual Property rights, subject to the limited rights expressly granted hereunder.

B. License to Ads.
If Customer is using the Targeting Services, then Customer grants to Demandbase and its third party technology partners and publishers a non-exclusive, limited, worldwide, royalty-free, license to market, display, perform, copy, transmit, distribute, and promote the ads provided in connection with its obligations herein.

C. License Restrictions. Customer will use the Services for internal business purposes only as contemplated by this Agreement and will not:

(a) use the Services in violation of or beyond the license granted herein;

(b) use the Services, directly or indirectly, in third party applications (such as tag containers, data management platforms and/or data warehouses) except as agreed to in an Order Form, which shall be subject to section E below (Interoperation with Third Party Applications);

(c) permit any third party to access the Services, or otherwise sell, rent, license, provide, or distribute the Services;
(i) provided, however, that Customer may authorize a contractor to process and implement the Services (“Third Party Contractor”), if such Third Party Contractor has entered into a written agreement with Customer at least as restrictive as this Agreement;

(d) use the Services: (i) to communicate any message or material that infringes the intellectual property rights of any third party or is otherwise unlawful; (ii) for credit reporting, background checks, or otherwise in any way that creates any obligations under any such laws; or, (iii) in any manner that violates any applicable local, state, domestic and/or international laws, rules, and regulations;

(e) create derivative works from the Services, or otherwise reverse engineer or access the Services in order to (i) build a competitive product or Services, (ii) build a product using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services;

(f) use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Demandbase’s infrastructure or interfere or attempt to interfere with the proper working of the Services;

(g) attempt to gain unauthorized access to the Services or related systems or networks, or systematically access the Services using “bots” or “spiders”;

(h) develop a competitive product to Demandbase’s Services;

(i) use the Services if such use would create obligations for Demandbase under the Health Insurance Portability and Accountability Act, as amended (“HIPAA”) and may not use the Services if Customer is (or becomes) a Covered Entity or business Associate under HIPAA nor use the Services in any manner involving Protected Health Information ((“PHI”) as defined in HIPAA) nor combine the Firmographic Information or IP address with PHI; and

(j) use the Services to send Demandbase Sensitive Information or otherwise combine the Firmographic Information or IP address provided with Sensitive information.

The restrictions set forth in this Section shall survive termination of this Agreement.

D. Demandbase Technology.

(a) Ownership. Customer acknowledges and agrees that Demandbase alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Demandbase technology and the Services (including, but not limited to, the Implementation Services and Services Data), as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services (all of the foregoing being the “Feedback”); provided however, in no event shall Demandbase claim any ownership rights to Customer’s Confidential Information. The Demandbase name, the Demandbase logo, the marks of Demandbase’s licensors, and the product names associated with the Services are trademarks of Demandbase or third parties, and no right or license is granted to use them.

(b) Data. Customer acknowledges that each Party is an independent data controller (as defined under the General Data Protection Regulation EU 2016/679) of any personal data collected as part of the Services Data and the Targeting Services. Demandbase shall collect, analyze, review, and aggregate data collected through the Services (including Website Data), which shall include information from API and application server logs, such as API requests and results, IP address, online identifiers (cookies), browser type, browser language, and the date, time and referral URL of API calls, and data otherwise collected through its Services, for the purposes of: (i) improving the Demandbase Services and products and for Demandbase’s legitimate interests, such as market research and other compatible processing purposes; (ii) to prevent and/or address technical concerns related to the Services; and (iii) to otherwise provide and optimize the Services. Customer agrees that the Demandbase tag will include an API call and cookies, which may sync (including accessing or setting cookies) with third party cookies for the Demandbase Services.

(c) Removal. Upon termination of the Agreement, Customer shall immediately cease all use of the Demandbase technology and delete, destroy, or return all copies of any Demandbase technology and any related documentation in its possession or control. Customer acknowledges and agrees that Demandbase may be able to collect and use Website Data as described herein from Demandbase technology not removed from Customer’s website and Customer is responsible for any legal liability arising out of Customer’s failure to remove such technology.

(d) Upgrades. In the event that Demandbase releases any Upgrades, then Customer agrees to immediately implement such Upgrades. Upon delivery to Customer, the Upgrades shall become part of the Services and subject to license and other provisions herein.

E. Interoperation with Third Party Applications.
The Services may contain features designed to interoperate with Third Party Applications. To use such features, Customer may be required to obtain access to such Third Party Applications from their providers, and may be required to grant Demandbase access to Customer’s account(s) for such Third Party Applications. Demandbase cannot guarantee the continued availability of such features, and may cease providing them without entitling Customer to any notice, refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Application ceases to make their application available for interoperation with the corresponding Services features in a manner acceptable to Demandbase.

III. Term and Termination.

(a) Initial Term. The Initial Term of the Services shall commence on the start date stated in the applicable Order Form. This Agreement may be renewed by an Order Form that references this Agreement executed by Customer and Demandbase or a Demandbase authorized reseller.

(b) Termination for Cause. Either Party may terminate the Agreement for cause upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period.

(c) Termination for Insolvency. In the event that either Party hereto is adjudged insolvent or bankrupt, or upon the institution of any proceeding regarding insolvency, receivership, liquidation or assignment for the benefit of creditors, then such Party will immediately give notice thereof to the other Party, and the other Party may terminate the Agreement upon written notice.

IV. Suspension.

In the event of any material breach of this Agreement by Customer (including non-payment of fees by Customer or its authorized reseller), without limiting Demandbase’s other rights and remedies, Demandbase may immediately, with 10 days written notice (email is sufficient) suspend Customer’s access to the Services until cured.

V. Warranties.

A. Compliance.
(a) Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract, commitment, or legal impediment which may limit, restrict, or impair its ability to perform its obligations hereunder. Customer represents and warrants that it will comply with all applicable federal, state, and local laws and regulations and applicable industry standards required for the provision of and Customer’s use of the Services, including applicable data protection laws and industry standards arising under Section II(D) (Demandbase Technology).

(b) Customer Warranties. If Customer is using the Targeting Services, it represents and warrants to Demandbase that: (i) it has and will have any and all necessary rights to allow Demandbase to deliver the ads; (ii) no ads will infringe or misappropriate any third party’s Intellectual Property Rights or otherwise breach any duty toward, or rights of, any third party, including rights of publicity or privacy; (iii) it will adhere to applicable obligations in the DAA and eDAA self-regulatory principles for online behavioral advertising; and (iv) it will comply with the terms set out in Demandbase’s Ads Policy incorporated herein by reference, available at www.demandbase.com/ads-policy. Customer further represents and warrants that it is solely responsible for acting as the responsible body with regards to any transfer of personal data to Demandbase and for the legality and the means by which Demandbase acquired such personal data, including when required by law, obtaining consent for the use of the Website Data and any personal data otherwise shared by Customer. As required by applicable law and industry standards, Customer will (i) clearly disclose any data collection, sharing and usage that takes place on its website (or its other locations) through the Demandbase Services; and (ii) the use, the storage, and access of personal data for the Demandbase Services. As part of obtaining consent for the Website Data, Customer is required to (i) retain consent records and provide such records to Demandbase immediately upon request; and (ii) provide data subjects with clear instructions on withdrawing consent.

B. Performance.
Demandbase represents and warrants that it will perform the Services in a diligent and professional manner.  Demandbase further represents and warrants that, during the subscription period, the Demandbase ABM Platform will reasonably comply with the specifications set forth in Demandbase’s then current generally available published documentation.

C. Disabling Codes.
Demandbase represents and warrants to Customer that it will not intentionally introduce or distribute any malicious code or viruses into the Services.

VI. Confidentiality.

(a) “Confidential Information” means any information, technical data, or know-how (including, but not limited to, information relating to research, products, software, Services, development, inventions, processes, engineering, marketing, techniques, customers, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities disclosed by the disclosing Party to recipient either directly or indirectly in any form whatsoever (including, but not limited to, in writing, in machine readable or other tangible form, orally or visually) and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective Party, regardless of whether they may be copyrighted, patented or trademarked.

(b) During the Term of this Agreement, each Party will learn or receive information about the other which the other treats as confidential. Each Party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving Party treats its own confidential information (but in no event less than reasonable care). Receiving Party shall not use the Confidential Information for purposes of unfair competition. Receiving Party agrees not to copy, alter, modify, disassemble, reverse engineer or decompile any Demandbase Confidential Information or violate the License Restrictions as noted in this Agreement. Each Party agrees not to transfer, distribute or disclose to any third party any Confidential Information of the other, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement. For clarity, the Services Data is Demandbase’s Confidential Information.

(c) Exceptions. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving Party hereunder, (ii) was already rightfully in the possession of the receiving Party when received by the disclosing Party, (iii) is received from a third party without breach of any obligation owed to the disclosing Party or (iv) was developed independently by the receiving Party by individuals without reference to disclosing Party’s Confidential Information, as evidenced by its records.

(d) The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding to which the disclosing Party is a party, and the disclosing Party is not contesting the disclosure, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

(e) The obligations of the Parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the Term and for three (3) years thereafter. Thereafter, the receiving Party’s obligations with respect to any particular Confidential Information of the disclosing Party shall remain in effect, including after the expiration or termination of this Agreement, until such time as it qualifies under one of the exceptions set forth in Section VI(c) above.

(f) Demandbase and Customer acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other Party may be irreparable; therefore, the Parties may seek equitable relief, including injunction and preliminary injunction for such alleged breaches.

VII. Indemnification.

Each Party (in this case, the “Indemnifying Party”) shall defend each other (in this case, the “Indemnified Party”) and the Indemnified Party’s officers, agents, and employees against any third party claim, demand, suit or proceeding made or brought by a third party, arising out of or caused by the breach or alleged breach by (i) the Indemnifying Party of any of its representations or warranties contained in Section V(A) (Warranties; Compliance); and (ii) Demandbase, if Customer’s use of the Services in accordance with this Agreement infringes or misappropriates such third party’s U.S. patents or other Intellectual Property Rights (each, a “Claim”). The Indemnifying Party shall indemnify the Indemnified Party for any damages, attorney fees and costs awarded as a result of, or any amounts paid under an Indemnified Party approved settlement of, a Claim against such Party, or any other resulting demands, liabilities or expenses (including reasonable attorneys’ fees); provided that the Indemnified Party (a) promptly gives the Indemnifying Party written notice of the Claim; (b) gives the Indemnifying Party sole control of the defense and settlement of the Claim (provided the Indemnifying Party may not settle or defend any Claim against the Indemnified Party unless it unconditionally releases the Indemnified Party of all liability and obtains such Party’s approval); and (c) provides to the Indemnifying Party reasonable assistance, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense with counsel of its choosing at its own cost.

Notwithstanding the provisions of this Section, Demandbase will have no liability to the extent that any such Claim would have been avoided but for (i) unauthorized modification of the Services or any deliverable by Customer after delivery by Demandbase, (ii) Customer’s failure to use updated or modified Services provided at no cost as a replacement for the original Services by Demandbase to avoid such a claim, (iii) any use of the Services not in accordance with the Order Form and this Agreement; (iv) third party products and services (including Third Party Applications); or (v) the combination of the Services with products or services not provided by Demandbase.

In the event that any Services are, or are likely to be, infringing, Demandbase, at its option and expense, may either (i) modify the Services so that they become non-infringing, (ii) replace the Services with functionally equivalent non-infringing services, or (iii) procure for Customer the right to continue use of the Services.

This “Indemnification” section states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this section.

VIII. Disclaimer and Limitation of Liability.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES AND THE SERVICES DATA PROVIDED BY DEMANDBASE IS PROVIDED ON AN “AS IS” BASIS. DEMANDBASE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. DEMANDBASE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE SERVICES DATA PROVIDED BY DEMANDBASE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICES OR THE SERVICES DATA PROVIDED BY DEMANDBASE WILL RESULT IN SALES. THE SERVICES AND THE SERVICES DATA PROVIDED BY DEMANDBASE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DEMANDBASE HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS’ AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER THE AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IX. General.

(a) Contracting Party, Notices, Governing Law and Jurisdiction. The contracting party, jurisdiction, governing law and notice provisions for this Agreement depend on where the Customer is domiciled:

If Customer is domiciled in: Customer is contracting with: Notices should be addressed to: Governing Law Courts having Jurisdiction
Country in Europe, the Middle East or Africa Demandbase, Ltd., a private limited company incorporated in England Demandbase, Ltd. Arquen House, 4-6 Spicer Street, St. Albans, Hertfordshire, AL3 4PQ UK

Law of England and Wales England and Wales (in London, England)
United States of America and rest of world Demandbase, Inc., a Delaware corporation Demandbase, Inc. 680 Folsom Street, Suite 400 San Francisco, CA 94107 California and controlling United States federal law San Francisco County, California, USA

Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to irrevocably submit to the exclusive jurisdiction of the applicable courts.

(b) Assignment. This Agreement is binding on the Parties hereto and their respective successors and permitted assigns. Demandbase may assign this Agreement in its entirety (including all Order Forms hereunder), without consent, to its successor in connection with a merger, reorganization, or sale of all or substantially all of its assets or equity. Otherwise, neither Party may assign, delegate or transfer this Agreement and any assignment or other attempt in violation of this section is void.

(c) Force Majeure. Demandbase’s failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, changed governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement. In the event that Demandbase is not able to provide Services during such event, during such period Customer’s obligation to pay for the Services shall be suspended and Customer may terminate after 30 days without Services.

(d) Surviving Provisions. (a) Sections II(C) (License Restrictions), II(D) (Demandbase Technology), VI (Confidentiality), VII (Indemnification), VIII (Disclaimer and Limitation of Liability), IX (General), and any outstanding payment obligations of Customer, shall survive any termination or expiration of this Agreement or Order Form.

(e) No failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching Party shall be construed as a waiver of that breach by the non-breaching Party or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching Party.

(f) This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties.

(g) Except as stated in sections IX(n) and (o) (General; Data Processing Agreement and Data Transfers), the Demandbase Ads Policy, and as otherwise legally required, no text or information set forth on any other purchase order, preprinted form or document (other than a mutually executed Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

(h) The Parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Demandbase as a result of this agreement or use of the Services.

(i) No rules of construction are intended or shall be applied in the interpretation of this Agreement and both Parties hereto shall be deemed joint authors hereof for all purposes.

(j) Support; Service Levels.  Demandbase shall provide the support and availability set forth at www.demandbase.com/terms-of-service-support.

(k) Implementation and Support Services. Implementation Services may be provided pursuant to a Statement of Work (“SOW”) attached to a mutually agreed Order Form. Customer shall be responsible for the payment of travel and expenses and hourly rates for any implementation, custom, or support services, which shall be billed at the rates specified in Demandbase’s then-current policies or as otherwise agreed to in a SOW.

(l) Data Processing Agreement. Customer agrees not to provide Demandbase with any Personal Data for which Demandbase will be a Processor under EU Privacy law (as such terms are defined in the Data Processing Agreement) unless Customer agrees to the terms and conditions of the Data Processing Agreement available at https://www.demandbase.com/data-processing-agreement/ (“DPA”), which terms are incorporated herein by reference and shall govern the Parties’ relationship with regards to the Processing of such Personal Data. In the event that Customer provides Demandbase with personal data as Processor not covered within the scope of the DPA, then Customer will immediately inform Demandbase and remove any information provided.

(m) Data Transfers. The Parties agree that the Privacy Shield terms within the “Data Transfers” Section of the Data Processing Agreement shall apply to any applicable transfers of data. If Privacy Shield is no longer applicable to Demandbase for any reason, then the Parties agree that the Controller-to-Processor Standard Contractual Clauses shall apply to transfers to Demandbase as a Processor, as set forth in the Data Processing Agreement, and the Controller-to-Controller Standard Contractual Clauses (Standard Contractual Clauses (Controller-to-Controller Transfers – Set II) in the Annex to the European Commission Decision of December 27, 2004, as may be amended or replaced from time-to-time by the European Commission) shall apply to any transfers to Demandbase as a data controller, which includes the Website Data to be used for the purposes described herein.

(n) Beta Features. Section V(B) shall not apply to any “beta” software made available through the Services, which may contain defects, and Customer is responsible for implementing procedures and methods for use and evaluation of such Services which are intended to protect the operation of other Customer systems and software. USE OF SUCH BETA SERVICES IS AT CUSTOMER’S SOLE RISK; SUCH SERVICES MAY CONTAIN DEFECTS, FAIL TO COMPLY WITH APPLICABLE SPECIFICATIONS, AND PRODUCE UNINTENDED OR ERRONEOUS RESULTS WHEN OPERATED IN COMBINATION WITH OTHER SOFTWARE OR SERVICES. CUSTOMER ACCEPTS SUCH SERVICES “AS IS.” In addition, Demandbase’s limit of liability under Section VIII for beta licenses is limited to U.S. $5,000.

(o) Evaluation and Trial Licenses. If Customer is receiving an evaluation or trial license to the Services, the license shall be for a period not to exceed 90 days and shall be limited to trial and evaluation purposes. Section V(B) shall not apply to any trial and evaluation licenses, and Customer acknowledges that the Services may contain “beta” software, may contain defects, and that Customer is responsible for implementing procedures and methods for use and evaluation of the Services which are intended to protect the operation of other Customer systems and software. USE OF SUCH SERVICES IS AT CUSTOMER’S SOLE RISK; SUCH SERVICES MAY CONTAIN DEFECTS, FAIL TO COMPLY WITH APPLICABLE SPECIFICATIONS, AND PRODUCE UNINTENDED OR ERRONEOUS RESULTS WHEN OPERATED IN COMBINATION WITH OTHER SOFTWARE OR SERVICES. CUSTOMER ACCEPTS SUCH SERVICES “AS IS.” In addition, Demandbase’s limit of liability under Section VIII for trial licenses is limited to U.S. $5,000.