License and Services Agreement

Effective as of the date you accept this Agreement

Please read this License & Services Agreement (this “Agreement”), together with Exhibit A (Data Processing Addendum), carefully because it is a legal agreement between you (“Customer”, “you”, “your”) and Marathon Data, LLC a Delaware limited liability company with its principal place of business at 1258 Upper Happy Valley Rd., Lafayette, CA 94549 and operating from the website www.MarathonDataCo.com (“Marathon”, “we”, “us”, “our”) effective as of the date you accept this Agreement (the “Effective Date”). Marathon and Customer are referred to collectively in this Agreement as the “Parties” or individually as a “Party.”

This Agreement governs Customer’s access to and use of the proprietary hosted software suite (the “Marathon Platform”), supplementary consulting services (“Professional Services”), and any other software, products, interfaces, technology, user manuals or documentation, or related services that we provide you (the foregoing collectively, the “Services”).

Marathon will provide the Services to you only if you accept this Agreement. If you do not accept this Agreement, you may not use the Services. If you click on the “Continue” button below or use the Services, you are indicating that you understand and accept the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, and in that case “you” or “your” will refer to such entity.

1. Services

(a) Description and Nature of the Services. Via the Services, you may use the Brand Health Dashboard available on the marathondataco.com domain, as well as additional Services which Marathon may make available to you from time to time. Marathon may modify the Services at any time in its sole discretion;

(b) Right to Use the Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Marathon grants to Customer a limited, non-exclusive, non-transferable (except pursuant to Section 10) right to use and access (“Use”) the Services during the Term for its internal business purposes consistent with the intended use of the Services;

(c) Feedback. Customer will reasonably cooperate with Marathon to provide Marathon with feedback to the Services (including through mutually agreed regular meetings with Marathon) and will work with Marathon to identify and resolve any errors, problems or defects in the Marathon Platform discovered by Customer or Marathon. All feedback, comments, and suggestions for improvements that Customer provides to Marathon hereunder, whether during or after the Term are referred to collectively as “Feedback”;

(d) Ownership. Marathon reserves and will solely own the Services, and all right, title and interest in and to the Services. Customer hereby irrevocably transfers and assigns to Marathon, and agrees to irrevocably transfer and assign to Marathon, any right, title and interest that it may acquire or possess, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, “Intellectual Property Rights”), in and to: (i) the Services, and (ii) any Feedback. At Marathon’s request, during and after the term of this Agreement, Customer will assist and cooperate with Marathon in all respects, and will execute documents, and will take such further acts reasonably requested by Marathon to enable Marathon to acquire, perfect, maintain and enforce Marathon’s Intellectual Property Rights in and to the Services or Feedback.

(e) Use Restrictions; Authorized Users. Marathon reserves all rights not expressly granted to Customer hereunder. Customer will not and will not permit any person or entity to, directly or indirectly:

(i) Use the Services in any manner or for any purpose that infringes, misappropriates, or violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law;

(ii) reverse engineer, decompile, disassemble or modify the Services or authorize a third party to do any of the foregoing;

(iii) distribute, sell, sublicense or otherwise transfer the Services; or

(iv) Use the Services or any other Confidential Information for benchmarking or competitive analysis, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.

Customer will not allow any person or entity to Use the Services other than its employees or individual contractors that it authorizes to Use the Services on its behalf (“Authorized Users”).

2. Customer Materials and Data

As between Customer and Marathon, Customer owns and retains all right, title and interest in and to all information, data, content and other materials, in any form or medium, that is provided, or otherwise uploaded, by or on behalf of Customer through the Services (the “Customer Materials.”) Marathon may Use, display and modify, and authorize others to do so, the Customer Materials to provide and improve the Marathon products and services during the Term and develop or derive data or insights in deidentified form from (i) any Customer Materials or (ii) Customer’s and/or its Authorized Users’ use of the Services.

3. Representations and Warranties

Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents.

Customer represents and warrants that Marathon’s use of the Customer Materials will not violate any applicable laws or regulations or infringe or violate any Intellectual Property Rights or other rights of any third party.

4. Term

(a) Trial Period. Beginning on the Effective Date, a trial period will commence during which time you may use certain aspects of the Marathon Platform, including the Brand Health Dashboard, free of charge (the “Trial Period”).

(b) Conclusion of Trial Period. The Trial Period will continue until terminated upon the mutual determination of the Parties. Customer agrees, upon expiration of the Trial Period Term, to negotiate in good faith a subsequent paid subscription agreement with Marathon regarding Customer’s Use of the Services (“Subsequent Agreement”), provided that Customer is not obligated to enter into a Subsequent Agreement.

5. Termination

(a) Either Party may terminate this Agreement, effective on written notice to the other, if the other Party materially breaches this Agreement, and, if able to be cured, such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Marathon may further terminate this Agreement immediately upon written notice to Customer in the event that Customer breaches Sections 1(b)-(e), Section 7, or infringe or otherwise violates Marathon’s Intellectual Property Rights. Either Party may terminate this Agreement with thirty (30) days’ prior written notice to the other Party for any reason (or no reason).

(b) Effect of Termination. Upon expiration or termination: (i) Customer and its Authorized Users shall immediately terminate use of the Services; all amounts due to Marathon shall be immediately due and payable; and (ii) each Party will promptly return (or destroy) all Confidential Information of the other Party.

6. Payment Terms

You agree to pay any fees due from you to us regarding your Use of the Services pursuant to a Subsequent Agreement (“Fees”) monthly in arrears using the payment method that we specify. The Fees will be a mutually agreed upon amount between you and us.

7. Confidentiality

“Confidential Information” means any information that one Party provides to the other in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered confidential, including the Services. The Receiving Party will not use or disclose any Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement.

Marathon agrees to implement all appropriate technical and organizational security measures to protect Personal Data against accidental or unlawful destruction, unauthorized disclosure or access, and accidental loss, alteration, or damage.

8. Disclaimer, Limitation of Liability

(a) Disclaimer. The Services are provided “as is.” Marathon makes no warranty or representation regarding the Services. To the maximum extent law permits, Marathon hereby disclaims all warranties and representations, whether express or implied, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement.

(b) Exclusion of Damages. Except for Excluded Claims, neither party will be liable to the other for any indirect, incidental, special, exemplary, punitive or consequential damages, any loss of income, data, profits, revenue or business interruption.

(c) Limitation of Liability. Except for Excluded Claims, in no event will either party’s total liability exceed the fees actually paid by Customer to Marathon in the six (6) month period preceding the event giving rise to the claim or one hundred dollars ($100), whichever is greater.

9. Indemnification

Marathon will defend Customer against any Claims alleging that Customer’s Use of the Services infringes or misappropriates such third party’s Intellectual Property Rights and will indemnify and hold harmless Customer against any damages and costs awarded. Customer will defend, indemnify and hold harmless Marathon from Claims that the Customer Materials infringe third-party rights.

10. Miscellaneous

Neither Party may assign this Agreement without the other Party’s prior written consent, except to a successor entity in the event of a merger, acquisition, or change of control. This Agreement is governed by the laws of the State of Delaware. Any legal action will be brought exclusively in the U.S. District Court for the District of Delaware.

Exhibit A: Data Processing Addendum

1. Subject Matter and Duration

This Addendum reflects the parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data.

2. Definitions

— “Customer Personal Data” means Personal Data Processed by Marathon on behalf of Customer.
— “Data Protection Laws” means applicable data privacy laws including CCPA, GDPR, Swiss Federal Act on Data Protection, UK GDPR, and UK Data Protection Act 2018.
— “Personal Data” has the meaning assigned under applicable Data Protection Laws.
— “Process” means any operation performed on Personal Data.
— “Security Incident(s)” means breach of security leading to accidental or unlawful destruction, loss, unauthorized disclosure of Customer Personal Data.
— “Subprocessor(s)” means Marathon’s authorized vendors that Process Customer Personal Data.

3. Processing Terms

3.1 Marathon shall Process Customer Personal Data in accordance with the Agreement and documented instructions.

3.2 Customer authorizes Marathon to engage Subprocessors.

3.3 Marathon shall enter into written agreements with Subprocessors regarding data protection.

3.4 Marathon will notify Customer prior to engaging new Subprocessors and allow 10 days to object.

3.5 Persons authorized to Process Customer Personal Data must be subject to confidentiality obligations.

3.6 Marathon agrees to provide reasonable assistance with data subject rights requests.

3.7 Marathon agrees to assist with data protection assessments where required.

3.8 Marathon agrees to provide information to demonstrate compliance upon request.

3.9 California Specific Terms: Marathon shall (i) comply with CCPA; (ii) not “sell” or “share” Customer Personal Data; (iii) not retain or use data outside the direct business relationship.

3.10 Marathon may Process data for internal improvements, security, and fraud detection.

3.11 Marathon may compile aggregated and/or de-identified data for lawful business purposes.

4. Information Security

Marathon shall use commercially reasonable efforts to implement and maintain reasonable security safeguards.

5. Security Incidents

Marathon agrees to provide written notice without undue delay upon becoming aware of a Security Incident.

6. Cross-Border Transfers

Customer authorizes Marathon to transfer data across international borders. For EEA/Swiss/UK data, transfers operate under EU Standard Contractual Clauses.

7. Audits

Customer may carry out an audit of Marathon’s policies once per year during regular business hours with reasonable advance notice.

8. Data Deletion

At termination, Marathon will delete all Customer Personal Data, except where required by law.

9. Customer’s Obligations

Customer represents it has complied with Data Protection Laws and obtained all necessary consents.

10. Processing Details

Subject matter: the Services. Duration: until termination. Categories: data subjects whose data is processed pursuant to the Agreement.

Exhibit 1 to the Data Processing Addendum

Supplemental terms for EEA, Swiss, and UK transfers under Standard Contractual Clauses.

1. Swiss Federal Act on Data Protection applies mutatis mutandis.

2. UK Data Protection Laws apply mutatis mutandis.

3. Option 2 in Clause 9 of SCCs applies (general authorization with notification).

4. Governing law: Ireland (EEA), Switzerland (Swiss), England and Wales (UK).

Annex I — Parties: Data Exporter (Customer, Controller) and Data Importer (Marathon, Processor).

Annex II — Marathon implements commercially reasonable technical and organizational measures.

Annex III — UK International Data Transfer Addendum incorporated by reference.