Data Authorization Agreement

Last Updated: June 23, 2022

The Services (as defined below) are created and owned by Foursquare Labs, Inc., a Delaware corporation (“Foursquare”). You are obtaining access to the Services via a subscription offered by a third-party reseller or marketplace (each, a “Platform”) and your use of the Services is governed by this End User License Agreement (this “Agreement”). This Agreement constitutes a binding legal agreement between you and Foursquare. Unless elsewhere defined herein, capitalized terms have the meanings set forth in Section 15. Each of you and Foursquare may be referred to herein individually as a “Party” or collectively as the “Parties”. The term “you” shall be deemed to include the company or other entity that you represent.

BY AGREEING TO THE SUBSCRIPTION TERMS OR BY ACCESSING AND/OR USING THE SERVICES, YOU ARE AGREEING TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND THE ENTITY YOU REPRESENT TO THIS AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE ENTITY THAT YOU REPRESENT, TO THIS AGREEMENT.

ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION IN SECTION 14.1. IN CONNECTION WITH THIS AGREEMENT, EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT PROVISION, THE PARTIES ACKNOWLEDGE AND AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND THE PARTIES WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1. Subscription

1.1. Subscription. Foursquare will provide the Services to the Platform, and the Platform is solely responsible for making the Services available to you (whether within the Platform, via download, or by other means made available by the Platform) under the Subscription Terms. The fees or rates for the Subscription, applicable payment schedule, and the frequency of revisions or updates thereto, shall be as set forth in the applicable Subscription Terms. A Subscription may be provided on a prepaid basis, or to the extent available, on a consumption basis or other fee structure available via the Platform. If this Agreement imposes a more limited license, stricter limitations, or greater obligations on you than the Subscription Terms, you must comply with this Agreement. Foursquare may restrict anyone from subscribing to the Services if Foursquare believes such person may threaten the safety and integrity of the Services, or if, in Foursquare’s discretion, such restriction is necessary to address any other reasonable business concern.

1.2. Documentation. You may make a reasonable number of copies of any Documentation to the extent necessary to use the Services in accordance with the rights granted under this Agreement, provided that you include all proprietary legends and other notices.

2. License

2.1. Services License. Subject to your full compliance with the terms and conditions set forth in this Agreement, the Subscription Terms, and any other policies or restrictions posted on or transmitted through the Services, Foursquare hereby grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services: (a) in connection with your internal business purposes (which includes the right to temporarily associate, but not permanently combine, the Data with your own data, including within your Platform account (together, “Associated Data”), which Associated Data may be used solely in the same manner as the Data; provided that nothing herein restricts your ability to use your own data when not associated with Data); and (b) with respect to Aggregated Data and Places Data (other than Places Internal Data), to create external reports, analyses and product demos (“External Materials”), so long as: (i) you provide Foursquare with attribution in such External Materials, (ii) you do not directly monetize such External Materials, (iii) no material portions of Data are exposed to third parties (where “material portions” means a set of data that could be marketed independently or that has material commercial value), and (iv) such External Materials are not competitive with Foursquare’s offering of the Data or disparaging of Foursquare’s services. For clarity, Device Data may never be externally displayed.

2.2. Additional Subscription-Specific Licenses. If (and only if) expressly permitted in the Subscription Terms for a given Subscription to Data, subject to your full compliance with the terms and conditions set forth in this Agreement, the Subscription Terms, and any other policies or restrictions posted on or transmitted with such Data, as applicable, Foursquare hereby also grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license:

2.2.1. where a Subscription authorizes external display of Places Data, to use, reproduce, distribute, transmit, display and perform Places Data (other than Internal Places Data) solely as integrated into your owned and operated application(s), website(s), product(s) and/or service(s) (“Your Service”); and

2.2.2. where a Subscription authorizes Ad Targeting, you may use the relevant encryption key to decrypt Hashed ID Data to generate Audience Data, and to the extent approved by Foursquare in writing in advance, you may also use Audience Data for Ad Targeting of Approved Campaigns via Authorized Platforms.

2.3. License Scope. Any other use of the Services other than as expressly authorized herein is expressly prohibited. The licenses herein have a limited term as specified in the Subscription Terms (which may be limited to one-time use of a Service, or to the duration of the designated time period) and will expire at the end of your Subscription, subject to any automatic renewals indicated in the Subscription Terms or the earlier termination of this Agreement. Each license is personal to you and does not extend to any other party (nor any affiliates).

3. Requirements

3.1. Data Security. You shall use industry-standard security measures designed to protect against unauthorized access to, or loss and misuse of, the Software and/or Data, as applicable, including encryption of stored information as well as organizational, contractual, technological, and managerial safeguards. You agree to promptly notify Foursquare in the event of any unauthorized access to the Software and/or Data within your possession or control.

3.2. Places Data Requirements. In connection with any external display of Places Data via Your Service, you must: (a) provide Foursquare with branded attribution (i.e., ‘Powered by Foursquare’) on every page or screen where Places Data may appear in accordance with trademark guidelines published by Foursquare at location.foursquare.com/legal/terms/trademark-and-brand-feature-guidelines/ (as may be updated), and (b) make commercially reasonable efforts to prevent any pages or other properties displaying Places Data from being crawled, and (c) if Your Service provides real-time route guidance, have an end user license agreement that includes the following notice: YOUR USE OF THIS APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.

3.3. Device Data Requirements. You agree that you will use only the most recent Device Data provided by the Platform and promptly delete any older Device Data. If Foursquare provides you with an encryption key for Hashed ID Data, the key constitutes Foursquare’s Confidential Information and you will delete it promptly once no longer needed. In connection with use of any Audience Data, each Party shall comply with the self-regulatory principles and guidelines of the Digital Advertising Alliance and the Network Advertising Initiative Code of Conduct, as applicable. In connection with Ad Targeting via Authorized Platforms, you will also: (i) comply with all applicable platform terms and policies; (ii) be primarily liable for any Authorized Platform that receives the Audience Data from you and violates this Agreement; and (iii) provide any usage reporting required by Foursquare.

3.4. Contractors. With respect to your employees or any contractors that you allow to access or use the Services on your behalf: (a) you remain primarily responsible for all obligations hereunder arising in connection with such use; and (b) you agree to be directly liable for any act or omission by such persons or parties to the same degree as if the act or omission were performed by you.

4. Restrictions

4.1. General Restrictions. Except as specifically provided herein, you shall not: (a) use the Services in violation of the Acceptable Use Policy located at location.foursquare.com/legal/terms/places-api/aup/; (b) use the Services to develop or improve for retention after the Term, any venue information or dataset, algorithm or machine learning operations, (c) publish, disseminate, distribute, transfer, or provide access to the Services to any third party; (d) sell, license, rent, loan, lease, or assign the Services, or attempt to grant any rights to the Services to third parties; (e) reverse engineer the Services or otherwise attempt to discern or replicate the methods used to create the Services or attempt to re-identify an individual user (including without limitation by associating personally identifiable information with Data such as location data or an advertising identifier); (f) use the Services to act as a consultant, service bureau or application service provider; (g) use the Services (alone or in combination with other data) for the purposes of making decisions about eligibility for employment, health care, credit or insurance, or for any other purpose that is covered by the Fair Credit Reporting Act; (h) use the Services (alone or in combination with other data) to associate any user, device or individual with any venue, brand or other information that is related to healthcare, addiction, pregnancy or pregnancy termination, or sexual orientation, or to otherwise infer an interest or characteristic related to any of the foregoing; or (i) use the Services to create or enhance a product or service that is competitive with Foursquare’s then-current products or services.

4.2. Places Data Restrictions. Notwithstanding anything to the contrary: (a) you may only use Places Internal Data on an internal basis and must not externally display such attributes to third parties; and (b) you shall not (i) make Places Data available to third parties other than as incorporated into Your Service or any External Materials; (ii) make Places Data available to third parties in bulk, or allow third parties to systematically query Places Data to obtain all or substantially all Places Data for a given locality, region, or country; or (iii) unless expressly authorized via your Subscription, use Places Data for lead generation (i.e., to contact businesses included in Places Data as prospective customers).

4.3. Device Data Restrictions. Notwithstanding anything to the contrary, you shall not: (a) externally display any Device Data, (b) combine Device Data with any other data (unless Foursquare has approved Ad Targeting, in which case you may temporarily combine Device Data with other targeting data solely for purposes of Ad Targeting, provided such other data does not include any data about an identified individual other than a device identifier), (c) use Device Data to track or depict the locations or actions of an individual, or (d) create or augment user profiles or audience segments (including “lookalike” audiences) using any information generated by or derived from use of Device Data.

5. Proprietary Rights

5.1. The Services. As between the Parties, Foursquare retains all right, title and interest in and to the Services and Documentation, including without limitation any and all Proprietary Rights therein, including any technology, designs, know-how, infrastructure and other technology used to collect or curate the Services, as well as any future developments or enhancements thereto. Except as expressly granted in the Agreement, nothing will be construed or interpreted as granting you any rights of ownership or any other Proprietary Rights in or to the Services. Foursquare reserves all rights in and to the Services not expressly granted in this Agreement.

5.2. Your Ownership. Except for the Data included therein: (a) you own all right, title and interest in and to any External Materials, including all Proprietary Rights therein, and (b) nothing in this Agreement will be construed or interpreted as granting to Foursquare any right, title or interest or any other Proprietary Rights in or to Associated Data or External Materials.

5.3. Feedback. Except as expressly prohibited herein, Foursquare may use the information generated in the course of providing the Services for its business purposes, provided that such information is aggregated and anonymized (i.e., it does not disclose information that could reasonably identify you). Foursquare shall not be prohibited from improving its products on the basis of general learning and know-how gained from the provision of Services to you and Foursquare’s other partners. Foursquare may use your suggestions, ideas, enhancement requests, recommendations or feedback regarding the Services (“Feedback”) without accounting, attribution or compensation to you. You have no obligation to provide Feedback, and all Feedback that you provide will be “as is” and without warranty of any kind.

5.4. Trademarks & Logos. All Foursquare trademarks, service marks, logos, and trade names are owned solely by Foursquare. All third-party trademarks, service marks, logos, and trade names are the property of their respective owners and their use in connection with the Services is not meant to convey any relationship with or endorsement by such third parties. Except as expressly authorized by Foursquare, you may not use or display any mark, name, trade name, or logo appearing in connection with the Services without the owner’s prior consent or legal authorization.

6. Fees

6.1. Fees. You are responsible for the timely payment to the Platform of all fees for use of the Services (“Fees”). If you fail to make any payment when due, in addition to all other remedies that may be available, Foursquare may prohibit access to the Services until all past due amounts have been paid, without incurring any obligation or liability to you or any other person by reason of such prohibition of access to the Services. As between the Parties, subject to Sections 10.4 and 11.3, all Fees are non-refundable. In the event you do not pay the Platform any amounts due for the Services, Foursquare reserves the right to directly pursue all available legal remedies against you for payment (and you shall be responsible for any reasonable, out-of-pocket costs incurred by Foursquare in connection therewith).

6.2. Taxes. As between the Parties, you are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on the Fees or otherwise arising from your receipt or use of the Services, other than any taxes imposed on Foursquare’s net income.

7. Warranties and Additional Covenants

7.1. Mutual. Each Party represents and warrants that: (a) it has full power and authority to enter in and perform this Agreement and that the execution and delivery of this Agreement has been duly authorized; and (b) this Agreement and such Party’s performance hereunder will not breach any other agreement to which the Party is a party or is bound or violate any obligation owed by such Party to any third party.

7.2. Disclaimer. FOURSQUARE PROVIDES ALL SERVICES ‘AS IS’ AND ‘AS AVAILABLE’ WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. FOURSQUARE MAKES NO, AND HEREBY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, QUIET ENJOYMENT, RELIABILITY, NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. ADDITIONALLY, FOURSQUARE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR THE PLATFORM WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE.

7.3. Third-Party Content. From time-to-time Foursquare may host or provide links to services, products, web pages, websites or other content of third parties (“Third-Party Content”). The inclusion of any link to, or the hosting of, any Third-Party Content is provided solely as a convenience and does not imply affiliation, endorsement, approval, control or adoption of the Third-Party Content. Foursquare makes no claims or representations regarding, and accepts no responsibility or liability for, Third-Party Content including without limitation its quality, accuracy, nature, ownership or reliability. Your use of Third-Party Content is at your own risk. When you leave the Services to access Third Party Content via a link, you should be aware that Foursquare’s policies, including its privacy policy, no longer govern. You should review the applicable terms and policies, including privacy and data gathering policies, of any website to which you navigate from the Services.

8. Confidentiality

“Confidential Information” means information that the disclosing Party (“Discloser”) identifies as confidential or the receiving Party (“Recipient”) should reasonably understand to be confidential given the circumstances and the nature of the information. Specifically, you agree that the Software and the Data are Foursquare’s Confidential Information even though the Data may include or make use of facts that are publicly available (for example, Places Data for New York City would be confidential, even if individual venue commercial addresses are public), provided that nothing herein shall restrict you from independently developing or obtaining data similar to the Data so long as you do so without having access to or using the Data. Confidential Information does not include information that the Recipient can demonstrate: (a) it knew without restriction before receipt from the Discloser, (b) is publicly available through no fault of the Recipient, (c) it rightfully received from a third party without a duty of confidentiality, or (d) is independently developed without use of or reference to Confidential Information. The Recipient may use Confidential Information only to fulfill its obligations under this Agreement and must use at least reasonable care to prevent any unauthorized use or disclosure of Confidential Information, but in any event no less stringent a standard than Recipient applies to its own Confidential Information. The Recipient may share Confidential Information with its employees, agents and contractors who need to know it, as long as they are bound to confidentiality obligations that are consistent with this Agreement, but Recipient shall remain primarily liable and responsible for parties in connection therewith. If compelled to do so by law, the Recipient may disclose Confidential Information as long as it provides reasonable prior notice to the Discloser (unless legally prohibited).

9. Limitation of Liability

9.1. Particular Limitations. EXCEPT FOR YOUR VIOLATION OF SECTIONS 2 (LICENSE), 4 (RESTRICTIONS) AND 8 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER CONTRACT FOR THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT WILL FOURSQUARE HAVE ANY LIABILITY FOR ANY MATTERS RELATED TO THE PLATFORM, INCLUDING FAILURES OR DELAYS IN DELIVERY OR SERVICE INTERRUPTIONS. THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

9.2. General Cap. FOURSQUARE’S AGGREGATE LIABILITY, INCLUDING WITHOUT LIMITATION FOR ALL OF ITS OBLIGATIONS AND LIABILITIES, IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF (A) $50.00 OR (B) THE TOTAL AMOUNT RECEIVED BY FOURSQUARE FROM THE PLATFORM FOR YOUR USE OF THE SERVICES AT ISSUE DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGES.

10. Indemnification

10.1. Foursquare Indemnity. Foursquare will, at its expense, indemnify, defend and hold harmless you and your respective officers, directors, employees, agents and representatives from and against any and all claims, actions, proceedings and suits brought by an unaffiliated third party, and any and all associated liabilities, losses, damages, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees) to the extent fully and finally awarded by a court of competent jurisdiction (“Claims”) that the Services, in the form provided by Foursquare, infringe any unaffiliated third party Proprietary Rights. Foursquare shall have no obligation for claims arising from or related to: (a) compliance with your technical specifications, (b) adaptation or modification of the Services, or combination of the Services with products or services not supplied by Foursquare, where the cause of action would not have arisen but for such adaptation, modification, or combination, (c) your failure to follow instructions provided by Foursquare which would have cured the cause of action, provided that following such instructions would not have caused you substantial additional cost, or (d) use of the Services other than as permitted in this Agreement ((a)-(d), the “Excluded Claims”).

10.2. Your Indemnity. You will, at your expense, indemnify, defend and hold harmless Foursquare and its affiliates and their respective officers, directors, employees, agents and representatives from and against any and all Claims arising out of or related to (a) your use of the Services (including all actions related thereto, such as storage), (b) Your Service, (c) any External Materials, or (d) any Excluded Claims.

10.3. Process. The Party seeking indemnification pursuant to this Section (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) will give the other Party (the “Indemnifying Party”) prompt notice of each Claim for which it seeks indemnification, provided that failure or delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Parties will give the Indemnifying Party their reasonable cooperation in the defense of each Claim for which indemnity is sought, at the Indemnifying Party’s expense. The Indemnifying Party will keep the Indemnified Parties informed of the status of each Claim. An Indemnified Party may participate in the defense at its own expense. The Indemnifying Party, without the Indemnified Parties’ prior written consent, (a) will not enter into any settlement that (i) includes any admission of guilt or wrongdoing by any Indemnified Party, (ii) imposes any financial obligations on any Indemnified Party that Indemnified Party is not obligated to pay under this Section, (iii) imposes any non-monetary obligations on any Indemnified Party, and (iv) does not include a full and unconditional release of any Indemnified Parties; and (b) will not consent to the entry of judgment, except for a dismissal with prejudice of any Claim settled as described in the foregoing clause (a). The Indemnifying Party will ensure that any Claim settlement is made confidential, except where not permitted by applicable law. The foregoing indemnities will not be limited in any manner whatsoever by any required or other insurance coverage maintained by a Party.

10.4. Infringement Remedy. In addition to Foursquare’s obligations under Section 10.1, if the Services are held, or in Foursquare’s opinion is likely to be held, to infringe, misappropriate or violate any Proprietary Rights or other rights of a third party, or, if based on any claimed infringement, misappropriation or violation of any Proprietary Rights or other rights of a third party, an injunction is obtained, or in Foursquare’s opinion an injunction is likely to be obtained, that would prohibit or interfere with your use of the Services under this Agreement, then Foursquare will at its expense either: (a) procure the right for you to continue using the affected Services in accordance with the license provided under this Agreement; or (b) modify or replace the affected Services so that the modified or replacement Services are reasonably comparable and do not infringe, misappropriate or violate any Proprietary Rights or other rights of the third party. If Foursquare is unable to (or believes it will be unable to) successfully accomplish any of the foregoing actions on a commercially reasonable basis, either Party may terminate this Agreement. If you are unable to obtain an appropriate refund from the Platform of any unused, prepaid fees for the Services, Foursquare will refund you the portion of such prepayment received from the Platform attributable to any remaining period of your Subscription.

10.5. Not Limiting. The foregoing indemnities will not be limited in any manner whatsoever by any required or other insurance coverage maintained by a Party.

11. Term and Termination

11.1. Term. This Agreement will continue in full force and effect until expiration or termination of the Subscription, unless terminated earlier by either Party as provided in this Agreement (the “Term”).

11.2. Termination. In addition to any other express termination rights set forth herein, Foursquare may, in its sole discretion, suspend access to the Services and/or terminate this Agreement, effective on written notice for any of the following: (a) your breach of this Agreement or the Subscription Terms, (b) Foursquare’s reasonable belief that continued provision or use of the Services would cause liability to Foursquare, the Platform or you, (c) in response to a request by a law enforcement or other government agency (d) suspension or termination of Foursquare’s agreement with the Platform, or (e) due to discontinuance or material modification of the Services.

11.3. Effect of Termination. Upon termination or expiration of your Subscription or this Agreement: (a) your authorization to use the Services automatically terminates, and (b) you shall promptly (but in any event within two business days) delete all Software and Data in your possession or control, including from any Associated Data, from your Platform account, and from any other computer systems operated by or for you (but for clarity, the foregoing shall not require you to delete permitted External Materials unless this Agreement is terminated for your breach), and upon Foursquare’s request, certify such destruction in writing. If Foursquare terminates or limits your right to use the Services, you are prohibited from separately subscribing to the Services, even if you may be acting on behalf of a third party. In the event of termination due to Sections 11.2(d) or 11.2(e), if you are unable to obtain an appropriate refund from the Platform of any unused, prepaid fees for the Services, Foursquare will refund you the portion of such prepayment received from the Platform attributable to any remaining period of your Subscription.

11.4. Survival. Sections 5 (Proprietary Rights), 6 (Fees), 8 (Confidentiality), 9 (Limitations of Liability), 10 (Indemnification), 11.3 (Effect of Termination), 11.4 (Survival), 14 (General) and 15 (Definitions), together with all other provisions of this Agreement that may reasonably be interpreted as surviving expiration or termination, including all accrued rights to payment, will survive the expiration or termination of this Agreement for any reason.

12. Export Controls; Sanctions; Anti-Bribery

You represent and warrant that you are not included on any sanctions or denied parties lists maintained by the U.S. or foreign agencies and authorities. You further acknowledge that the Services may be subject to export control and sanctions laws and regulations of the U.S. or foreign agencies or authorities. If you export, re-export or otherwise transfer the Services, you will be responsible for complying with and obtaining any authorizations required by applicable laws and regulations. Foursquare may suspend its performance under this Agreement to the extent required by laws applicable to either party. Additionally, you will comply with all anti-corruption and anti-bribery laws of all countries in which you operate, including without limitation, the U.S. Foreign Corrupt Practices Act.

13. Insurance

Each Party shall maintain, during the Term of this Agreement and for one (1) year thereafter, Commercial General Liability insurance that is reasonably adequate to fulfill its obligations hereunder, but in any event not less than $1,000,000 per occurrence and $2,000,000 aggregate limit, and Professional Liability insurance with a minimum limit of $1,000,000 for each claim and annual aggregate. Each Party shall provide to the other Party, upon request, a certificate of such insurance.

14. General

14.1. Applicable Law & Mandatory Arbitration. This Agreement will be governed by and interpreted under the laws of the State of New York, excluding its principles of conflict of laws. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The exclusive venue for any action or proceeding arising under or relating to this Agreement will be (and the parties hereby consent to personal jurisdiction in) New York, New York. Actions arising under or related to this Agreement or the Services must be brought in the initiating party’s individual capacity, not as a plaintiff or class member in any class action or similar proceeding, and shall be resolved by arbitration under the Commercial Dispute Resolution Procedures of the American Arbitration Association and the Rules for Emergency Measures of Protection. The arbitration will be decided by a single arbitrator whose decision will be final and binding. The arbitration will be confidential except as required by law. The prevailing party is entitled to reasonable attorneys’ fees and costs. You acknowledge that Foursquare may elect to replace the governing law and/or the location of such actions or proceedings with the choice of law and/or venue appearing in the Subscription Terms or Foursquare’s agreement with the Platform.

14.2. Assignment. You may not assign or transfer this Agreement or any rights or delegate any duties herein without the prior written consent of Foursquare. Any attempted assignment, transfer or delegation in contravention of this Section will be null and void. This Agreement will inure to the benefit of the Parties and their permitted successors and assigns.

14.3. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and there are no other representations, understandings or agreements between the Parties relating to the subject matter hereof. This Agreement is solely between the Parties. Neither the Platform nor any of its affiliates are a party to this Agreement and none of them will have any liability or obligations hereunder. The terms and conditions of this Agreement will not be changed, amended, modified or waived unless such change, amendment, modification or waiver is in writing and signed by authorized representatives of the Parties. NEITHER PARTY WILL BE BOUND BY, AND EACH SPECIFICALLY OBJECTS TO, ANY CLICK-ACCEPTANCE OR OTHER TERMS OUTSIDE OF THIS AGREEMENT, WHETHER PROFFERED ORALLY OR IN ANY QUOTATION, PURCHASE ORDER, INVOICE, SHIPPING DOCUMENT, ONLINE TERMS, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE, OR OTHERWISE, UNLESS SUCH PROVISION IS SPECIFICALLY AGREED TO IN A WRITING SIGNED BY BOTH PARTIES; PROVIDED THAT, FOR CLARITY, THE DATA, THIS AGREEMENT, AND ANY TECHNICAL REQUIREMENTS FOR USE OF THE DATA SET FORTH OR REFERENCED HEREIN ARE NOT SUBJECT TO THIS SENTENCE.

14.4. Force Majeure. Aside from accrued payment obligations for Services previously made available, neither party will be liable for failure or delay in performance due to causes beyond its reasonable control, including without limitation: acts of God, terrorism, war, riots, fire, earthquake, flood or failure of internet or communications infrastructure.

14.5. Government Rights. As defined in FARS §2.101, the Services and Documentation are “commercial items”. Any use, modification, reproduction, release, performance, display or disclosure of the Services by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

14.6. Headings. The headings throughout this Agreement are for reference purposes only, and the words contained therein will in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.

14.7. No Third-Party Beneficiaries. Nothing express or implied in this Agreement confers upon any person other than the Parties and the respective permitted successors or assigns of the Parties, any rights, remedies, obligations or liabilities whatsoever.

14.8. Notices. Each notice under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if given by fax or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Email notice may be sent to you via any email address you provided to the Platform, and to Foursquare via Legal@Foursquare.com.

14.9. Nonwaiver. Any failure or delay by either Party to exercise or partially exercise any right, power or privilege under this Agreement will not be deemed a waiver of any such right, power or privilege under this Agreement. No waiver by either Party of a breach of any term, provision, or condition of this Agreement by the other Party will constitute a waiver of any succeeding breach of the same or any other provision hereof. No such waiver will be valid unless executed in writing by the Party making the waiver.

14.10. Marketing and Publicity. You will not remove any branding, proprietary notices or labels that Foursquare includes with the Services. Aside from the foregoing and the Foursquare-branded attribution described in Section 3, you will not use Foursquare’s name or logo without prior written permission (email sufficing). All goodwill from the use of Foursquare’s name or logo inures to Foursquare. Neither Party will issue any publicity materials or press releases that refer to the other Party, without the other Party’s prior written consent.

14.11. Relationship of Parties. The relationship of the Parties will be that of independent contractors, and nothing contained in this Agreement will create or imply an agency relationship between the Parties, nor will this Agreement be deemed to constitute a joint venture or partnership or the relationship of employer and employee between the Parties. Each Party assumes sole and full responsibility for its acts and the acts of its personnel. Neither Party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other Party.

14.12. Severability. If any term or condition of this Agreement is to any extent held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and condition will be valid and enforceable to the fullest extent permitted by law.

15. Definitions

15.1. “Ad Targeting” means the targeting of a digital advertisement to an audience of end users, or the creation of an audience for use in such targeting.

15.2. “Aggregated Data” means Data consisting of aggregated visitation information to points of interest, retail chains or geographies (such as ‘100 visits to X venue during a calendar month’).

15.3. “Approved Campaigns” means advertising campaigns approved by Foursquare in advance in writing for Ad Targeting.

15.4. “Audience Data” means the online identifiers resulting from decryption of Hashed ID Data.

15.5. “Authorized Platform” means an advertising platform that Foursquare has approved in advance in writing for purposes of Ad Targeting.

15.6. “Data” means the Foursquare data identified in the applicable Subscription Terms (such as Aggregated Data, Device Data, and/or Places Data), as well as any other data that Foursquare provides to you via the Platform, including any revisions, updates, modifications, or enhancements thereto.

15.7. “Device Data” means, collectively, Hashed ID Data and Audience Data.

15.8. “Documentation” means any manuals, instructions, specifications, documentation, and other materials related to the Data or Services (including all information included or incorporated by reference in the applicable Subscription Terms), together with all enhancements, modifications, derivative works, and amendments to those documents, that Foursquare or the Platform publishes or provides under this Agreement.

15.9. “Hashed ID Data” means Data consisting of mobile device identifiers (or other online identifiers) that have been hashed using industry standard encryption methods.

15.10. “Places Data” means Data consisting solely of point-of-interest data from Foursquare’s venue information database (including without limitation venue name, address, related retail chain/category, hours, ratings, photos, etc.).

15.11. “Places Internal Data” means all ‘Calculated Score’ attributes and any other reliability metrics provided by Foursquare as part of the Places Data.

15.12. “Proprietary Rights” means all intellectual property and proprietary rights throughout the world, whether now known or hereinafter discovered or invented, including, without limitation, all: (a) patents and patent applications; (b) copyrights and mask work rights; (c) trade secrets; (d) trademarks; (e) rights in data and databases; and (f) analogous rights throughout the world.

15.13. “Services” means, collectively, the Data and Software.

15.14. “Software” means the Foursquare software-as-a-service solution identified in the applicable Subscription Terms (such as machine learning model packages, including ‘Snap-to-Place’).

15.15. “Subscription” means a subscription ordered by you from the Platform for access to and use of Services.

15.16. “Subscription Terms” means any agreement between you and the Platform for a Subscription to the Services.

16. Updates

16.1. Foursquare reserves the right to modify this Agreement. Foursquare will notify you by making the revised version available on this page, and an updated revision date will indicate that changes have been made. You agree to review this Agreement periodically to be aware of such changes. If any change is material, Foursquare will notify you by email or via your Platform account. If you do not accept the changes, you must stop using the Services. Your continued use of the Services after Foursquare publishes changes means that you are consenting to the updates.