Braze Onboarding Consulting Agreement

This Master Consulting Agreement (the “Agreement”) is by and between Mammoth Growth LLC (“Consultant”) and the company identified in the applicable SOW referencing this Agreement or otherwise using the Services (“Company”).  Consultant and Company, by Company’s execution of an applicable SOW or by use of the Services, hereby agree to the following terms and conditions:

1) Consulting Relationship. 

During the term of this Agreement, Consultant will provide services (the “Services”) to the Company as described in one or more statements of work signed by both parties (each, an “SOW”) that describe the Services together with the pricing and other terms and conditions.  

2) Fees. 

As consideration for the Services, the Company shall pay to Consultant the amounts specified in each SOW at the times specified therein.

3) Expenses. 

Consultant shall not be authorized to incur on behalf of the Company any expenses and will be responsible for all expenses incurred while performing the Services unless otherwise set forth in an SOW.  

4) Term and Termination. 

This Agreement shall commence on the Effective Date and continue for as long as there is at least one active SOW.

In addition to any other remedies it may have, if either party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate this Agreement or a specific SOW upon ten (10) days’ written notice.  Upon termination of this Agreement or a SOW for any reason other than Consultant’s breach, Company shall pay in full for the Services that have been rendered through the termination date plus all other charges that would have been due under the remaining term of each SOW.

5) Independent Contractor.  Consultant’s relationship with the Company will be that of an independent contractor and not that of an employee.

• Method of Provision of Services.  Consultant shall be solely responsible for determining the method, details and means of performing the Services.  Consultant may, at Consultant’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Consultant deems necessary to perform the Services (collectively, the “Assistants”).  The Assistants are not and shall not be employees of the Company, and Consultant shall be wholly responsible for the performance of the Services by the Assistants and shall be responsible for a breach of this Agreement by such Assistants.  
• Company Obligations.  Company shall provide Consultant with reasonable assistance, information and materials so that Consultant can effectively provide the Services. Consultant shall be excused from performing the Services to the extent that Company delays or refuses to provide Consultant with such requested assistance, information or materials.  Without limiting the foregoing, Company shall provide Consultant with the specific assistance described in each SOW.
• No Authority to Bind Company.  Consultant acknowledges and agrees that Consultant and its Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
• No Benefits.  Consultant acknowledges and agrees that Consultant and its Assistants shall not be eligible for any Company employee benefits and, to the extent Consultant otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of itself and its employees) hereby expressly declines to participate in such Company employee benefits.
• Withholding.  Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant or its Assistants under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self-employment, sole proprietorship or other form of business organization, and with respect to the Assistants, including state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements.  

6) Confidentiality.  

• Each party (“Receiving Party”) acknowledges that it will have access to certain confidential or proprietary information of the other party ("Disclosing Party") concerning the Disclosing Party's business, plans, vendors, employees, customers, technology, products, and other confidential information of Disclosing Party (collectively, “Confidential Information”). Confidential Information includes all information in tangible or intangible form that is marked or designated as confidential by the Disclosing Party or that, under the circumstances of its disclosure, should be considered confidential. The Disclosing Party (or its providers) owns all right, title and interest, including all intellectual property rights, in Disclosing Party's Confidential Information.  Confidential Information includes the terms and conditions of this Agreement and each SOW. Receiving Party agrees that it will not use in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement, nor disclose to any third party (except as required by law or to such party’s Assistants, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the Disclosing Party. Receiving Party will take reasonable precautions to protect the confidentiality of the Confidential Information of the Disclosing Party that are at least as stringent as it takes to protect its own Confidential Information. 
• Information will not be deemed Confidential Information if such information is proven by the Receiving Party: (i) to have been known to the Receiving Party prior to its receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) to have become publicly known, except through a breach of this Agreement by the Receiving Party; or (iii) to have been independently developed by the Receiving Party entirely without use of or reference to the Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or applicable law, provided that it gives the Disclosing Party reasonable prior written notice sufficient to permit the Disclosing Party to contest such disclosure. 

7) Ownership.   

• All software, artwork, icons, photos, sound, video or other materials owned by Consultant prior to or independent of the Services (“Consultant IP”) shall remain the sole and exclusive property of Consultant. All preparatory or experimental materials and deliverables, including without limitation, ideas, sketches, initial copy, concepts and proofs of concepts, artwork and type which are not incorporated in or substantially similar to the final deliverables, shall remain the sole and exclusive property of Consultant.
• Unless otherwise specified in the applicable SOW, and except for any Consultant IP and any software artwork, photos, sound, video or other materials owned by third parties (“Third Party Materials”), the final deliverables delivered by Consultant hereunder and approved by Company and Consultant for use by Company shall, when paid for, and to the full extent protectable under copyright, trademark, or trade secret law, become the sole and exclusive property of Company. Consultant and its employees and agents shall, without further consideration from Company, irrevocably assign all rights in all such final deliverables to Company and execute all documents necessary to do so. 
• To the extent the final deliverables include Third Party Materials, Consultant shall, unless such Third Party Materials are to be obtained or licensed directly by Company, obtain a license for Company to use the Third Party Materials as part of the deliverables for the purpose specified in the applicable SOW.  Consultant shall obtain Company’s approval before incorporating Third Party Materials into final deliverables.  Unless specifically provided otherwise, the Service fees set forth in SOWs do not include the cost of Third Party Materials. To the extent the final deliverables include Consultant IP, Consultant grants Company a non-exclusive, transferrable, perpetual, royalty-free, irrevocable license to use the Consultant IP as part of the final deliverables for the purpose specified in the applicable SOW.  
• Consultant shall retain all right, title and interest in all of Consultant’s ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes, irrespective of whether possessed by Consultant prior to, or acquired, developed, or refined by Consultant (either independently or in concert with Company but excluding Company’s proprietary ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes identified in writing in advance to Consultant) during the course of its performance under this Agreement.  It is agreed and understood that Consultant is in the business of providing consulting service to third parties, which are or may be substantially similar to the services and/or other deliverables being developed for Company.  It is not the intent of this Agreement to prevent Consultant from pursuing its stated business by independently creating such original but similar works for the benefit of third parties.

8) Warranty; Disclaimer.

‍Consultant shall use commercially reasonable efforts consistent with prevailing industry standards to provide the Services described in an SOW in a good and workmanlike manner.  In the event of a breach of the foregoing warranty, as Company’s sole remedy and Consultant’s sole obligation, Consultant shall re-perform, at no additional charge to Company, the non-conforming Services. 

Company represents and warrants that it has the right to provide the data and information required by Consultant to perform the Services and that the provision of such Company data and information shall not violate any laws, regulations, or agreements with any third party.

EXCEPT AS SET FORTH IN THIS SECTION 8, CONSULTANT DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.

9) Limitations of Liability. 

EXCEPT FOR LIABILITY ARISING FROM SECTION 6 (CONFIDENTIALITY), (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING; AND (B) IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID OR OWED BY COMPANY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.  IN NO EVENT WILL THIS LIMITATION APPLY TO AMOUNTS DUE FOR SERVICES UNDER THE AGREEMENT. THE WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10) Force Majeure.

Except for the obligation to pay money, neither party shall be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

11) No Solicitation.

Company shall not during the term of this Agreement offer, promise, solicit, employ or contract (direct or through a third party contractor) any Consultant Assistant who has been assigned to perform Services covered by this Agreement.  If Company shall employ or contract with any such Assistant during the term of this Agreement or within 365 days after the termination of this Agreement, Company shall pay Consultant, within 30 days, a fee of 200% of such person’s most recent annual compensation with Consultant.

12) Miscellaneous.

• Entire Agreement/Amendment. This Agreement, together with the SOW(s), constitutes the sole, final and entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous understandings, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or other communication shall be of no effect and not be binding upon the parties. This Agreement may only be amended by a written document signed by authorized representatives of Company and Consultant.
• Notices.  Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or 48 hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or facsimile number as set forth below, or as subsequently modified by written notice.
• Choice of Law; Venue.  The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflict of laws. Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in San Francisco County, California and the parties agree to submit to the exclusive personal jurisdiction of such courts. 
• Severability.  If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.  In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
• Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
• Advice of Counsel.  Each party acknowledges that, in executing this Agreement, such party has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and provisions of this Agreement.  This agreement shall not be construed against any party by reason of the drafting or preparation hereof.