Services
Subject to the terms hereof, Zepl Inc. (“Zepl”) will provide the following services to Customer during the term of this Agreement (the “Services”):
1.1. Software Implementation. Zepl shall provide access to Zepl’s enterprise collaborative data science platform (the “Software”) solely to Customer and Customer’s personnel (the “Customer Personnel”), in accordance with the terms and conditions of this Agreement, the Order Form and Zepl’s technical documentation made available at https://docs.zepl.com. Customer may permit its Contractors and Affiliates to serve as Users provided that any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer or such Affiliate. Customer shall be responsible for each User’s compliance with this Agreement.
1.2. Support. During the term designated in the Order Form (“Subscription Term”), ZEPL will provide Customer the level of support and service levels for the Service specified in the applicable Order Form, in accordance with the Support Policy, which is incorporated herein by this reference.
Restrictions, Responsibilities & Representation
2.1. Restrictions. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software or any documentation or data related thereto; (b) modify, translate, or create derivative Version Date: 2019 12 01 2 works based on the Software (except to the extent expressly permitted by Zepl or authorized within the Services); (c) transfer, sell, or distribute the Software in any way (except to the extent expressly permitted by Zepl or authorized within the Services); (d) use the Software for timesharing purposes or otherwise for the benefit of a third party; or (e) remove any proprietary notices or labels from the Software or any portion thereof.
2.2. Responsibilities. Customer shall be responsible for: (a) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services; (b) maintaining the security of Customer’s infrastructure, equipment, accounts, passwords (including but not limited to administrative and user passwords) and files; and (c) providing Zepl and its personnel with support and system access needed to perform the Services.
2.3. Representations. Customer represents, covenants, and warrants that Customer: (a) will use the Software only in compliance with this Agreement and all applicable laws and regulations; and (b) shall not infringe upon any third party’s trade secrets, trademarks, copyright, patent rights or other proprietary rights in its use of the Software.
Confidentiality ; Proprietary Rights
3.1. Confidentiality. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Zepl includes, without limitation, non-public information regarding features, functionality and performance of the Software. For the avoidance of doubt, any non-public data provided by Customer to Zepl to enable the provision of the Services or otherwise uploaded to the Software (the “Customer Data”) shall be considered the Proprietary Information of Customer includes. The Receiving Party agrees: (i) to use at least the same degree of care that the Receiving Party uses to protect its own proprietary information of a similar nature and value, but no less than reasonable care to protect and maintain the Disclosing Party’s Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted by the Disclosing Party in writing) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public through no wrongful act of the receiving Party; (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party without restriction by a third party; (d) was independently developed by the Receiving Party without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law (provided that, to the extent permitted by law, the Receiving Party shall promptly notify the Disclosing Party in writing prior to any disclosure pursuant to a legal requirement to allow the Disclosing Party a reasonable opportunity to seek a protective order or similar relief).
3.2. Customer Proprietary Rights and Limited License. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data using the Software and provided to Customer as part of the Services. Notwithstanding the foregoing, Customer grants Zepl, and each of Zepl’s respective subsidiaries, affiliates, successors, and assigns a limited license to use customer Data for the purpose of providing the Services. Notwithstanding anything to the contrary herein, Zepl shall also have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the software and related systems and technologies (including, without limitation, information concerning Customer Data and data derived there from), and Zepl will be free (during and after the term hereof) to: (a) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other Zepl offerings, but only to the extent that Customer Data is not disclosed to any third party in violation of Section 3.1, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business.
3.3. Zepl’s Proprietary Rights. No provision of this Agreement shall be construed as an assignment or transfer of ownership of any copyrights, patents, trade secrets, trademarks, or any other intellectual Version Date: 2019 12 01 3 property rights from Zepl to Customer or Customer Personnel. Zepl shall own and retain all right, title and interest in and to: (a) the Software and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with the Services (the “Inventions”); and (c) all intellectual property rights related to any of the foregoing. Zepl only grants Customer a limited, worldwide, nonexclusive, non-modifiable, non-sublicensable, and non-transferable license, during the term of this Agreement, to use the Software and any Inventions only to the extent strictly necessary to use the Software and receive the benefit of the Services as described in this Agreement.
Payment of Fees
4.1. Fees. Customer will pay Zepl the fees described in the Order Form (the “Fees”). Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and Fees are non-refundable. Zepl reserves the right to change the Fees at the end of the initial term or each subsequent renewal term.
4.2. Applicability of Agreement to Free Trial. Customer agrees that this Agreement shall apply to any Free Trial offered by Zepl. Customer further agrees that, in the event that Customer continues to use the Software following expiration of the Free Trial period, Customer shall pay the applicable Fees incurred for usage of the Service in accord with Zepl’s pricing policy located at /plans-and-pricing/ which is incorporated herein by reference.
4.3. Payment of Fees. Payment of the Fees shall be as set forth in the Order Form, provided that Zepl may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Zepl thirty (30) days after the mailing or emailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Each Party shall be responsible for all taxes associated with the Services other than taxes based on Zepl’s net income. If Customer believes that Zepl has billed Customer incorrectly, Customer must contact Zepl no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
4.4. Expenses. If pre-approved in writing by Customer, Customer will reimburse Zepl for actual and reasonable expenses (including travel) incurred by Zepl and its personnel in connection with the performance of Services.
Term and Termination
5.1. Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no SOW, Order Form or Retrieval Right currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.
5.2. Termination. In addition to any other remedies it may have, either Party may terminate this Agreement upon thirty (30) days’ notice, if the other Party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. In the event of termination by Customer based on Zepl’s material breach, Zepl shall reimburse Customer for any prepaid fees for the period of time for which Customer
did not receive the Services. Upon any termination, Zepl will make all Customer Data available to Customer for electronic retrieval using commercially reasonable efforts for a period of thirty (30) days, but thereafter Zepl may delete stored Customer Data (“Retrieval Right”).
5.3. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, proprietary rights, warranty disclaimers, and limitations of liability.
Warranty and Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND ZEPL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Indemnity
7.1. Indemnity by Zepl. Zepl shall indemnify, defend and hold harmless Customer and its respective affiliates, officers, directors and employees from Version Date: 2019 12 01 4 and against all third-party claims, demands, suits, causes of action, awards, judgments and liabilities, including reasonable attorneys’ fees and costs (collectively, “Claims”), resulting from: (i) any material breach of this Agreement by Zepl; or (ii) any infringement by the Software or the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Zepl is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. The foregoing obligations do not apply with respect to portions or components of the Software or the Services where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Software or any other portion of the Services are held by a court of competent jurisdiction to be or are believed by Zepl to be infringing, Zepl may, at its option and expense (a) replace or modify the Software or Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Software or the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
7.2. Indemnity by Customer. Customer will indemnify, defend, and hold harmless Zepl from and against any Claims arising out of or relating to any: (a) breach by Customer of Customer’s obligations and representations under this Agreement; or (b) any acts or omissions of any Customer Personnel which would constitute a breach if such Customer Personnel were a party to this Agreement.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT WITH RESPECT TO THE PARTIES’S INDEMNITY OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL: (I) EITHER PARTY BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOSS OF DATA) ARISING FROM ITS PERFORMANCE UNDER THIS AGREEMENT, REGARDLESS OF THE THEORY OF RECOVERY AND REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER IN CONNECTION WITH THE PROVISION OF SERVICES HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.
Third Party Software
9.1. Zepl makes no representation, and shall have no liability or obligation whatsoever, with respect to the content or use of, or correspondence with, any third-party website or services. Zepl does not endorse or approve any third-party website or services nor the content of any of the third-party website or services made available via the Services.
MISCELLANEOUS
10.1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2. Assignability. Neither Party may assign, transfer or sub-license this Agreement or any of its rights hereunder except with prior written consent of the other Party; provided, however, that Zepl may transfer and assign any of its rights and obligations under this Agreement without Customer’s consent in connection with the sale of all or substantially all of its business and assets, whether by merger, sale of assets, sale of stock or otherwise. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Subject to the foregoing, the rights and obligations of the Parties under this Agreement shall inure to and be binding upon the Parties’ successors and assigns.
10.3. Entire Agreement, Amendments, & Waiver. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
10.4. Independent Contractor: No Authority to Bind. Zepl’s relationship with Customer will be that of an independent contractor, and not that of an employee. Nothing contained in this Agreement, nor in any exhibits incorporated herein, shall be Version Date: 2019 12 01 5 construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship. The Parties acknowledge and agree that neither Party has the authority to enter into contracts that bind the other Party or create obligations on the part of the other without such Party’s prior written authorization.
10.5. Attorney’s Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable attorneys’ fees and costs.
10.6. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when: (a) received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; or (d) upon receipt, if sent by certified or registered mail, return receipt requested.
10.7. Governing Law. This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) are governed by, and construed in accordance with, the laws of the State of California. The Parties irrevocably agree that the courts of Santa Clara County, California have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
10.8. Dispute Resolution. The Parties agree to resolve any dispute, claim or controversy arising out of or relating to this Agreement according to the terms of this paragraph. First, the Parties agree to attempt in good faith to resolve the dispute through informal resolution. Second, if the dispute is not resolved through informal resolution, the Parties agree to attempt in good faith to resolve the dispute through mediation administered by JAMS in Santa Clara County, California, the costs of which shall be divided equally between the Parties. Third, if the dispute is not resolved through informal resolution and mediation, the Parties agree to participate in binding arbitration administered by JAMS in Santa Clara County, California. The Parties agree that, in the event of arbitration (or in the event of a lawsuit if this arbitration clause is deemed invalid or does not apply to a given dispute) the prevailing Party shall be entitled to costs and fees (including reasonable attorneys’ fees). Either Party may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described in this paragraph.
10.9. Waiver of Class or representative action: There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
10.10. WAIVER OF JURY TRIAL: YOU AND COMPANY EACH HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
10.11. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
10.12. Construction. This Agreement shall be deemed to be the product of all of the Parties hereto, and no ambiguity shall be construed in favor of or against any one of the Parties hereto.
10.13. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered (including by electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) shall be deemed an original, and all of which together shall constitute one and the same agreement.
10.14. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
Zepl Has Been Acquired by DataRobot. 
