This Agreement (“Agreement”) is made and entered into by and between Zeplin, Inc., a Delaware corporation with its principal place of business at 832 Sansome Street, 3rd Floor, San Francisco, CA 94111 (“Zeplin”), and you (“Customer”).
Zeplin is in the business of providing certain Services (as defined in Section 1 below) and Zeplin is willing to permit Customer to access and use the Services, subject to the terms and conditions of this Agreement.
- “Account” means an online account that Customer creates by registering with the Services.
- “Administrator” means an authorized administrator of the Services for the Customer and its Authorized Users.
- “Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party. “Control,” (including, with correlative meaning, the terms “controlled by” and “under common control”) for purposes of this definition, means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
- “Authorized User” means an employee, consultant, agent, or contractor of Customer or its Affiliates who has (i) been authorized by Customer or its Affiliates to register to access and use the Services and (ii) been assigned authentication credentials, or access to the single sign-on feature to access and use the Services. Authorized User also includes any invitees that the foregoing invite to access and use the Services.
- “Customer Data” means any Content that Customer or its Authorized Users submit, upload, transmit, process, provide, or otherwise make available through the Services, including but not limited to identifying information (such as a user’s email address or name) and billing information.
- “Customer Marks” means Customer’s name, trademarks, and logos, which are used to identify Customer and its business.
- “Components” means reusable blocks of code (including but not limited to design elements and user interface elements) for each Project analyzed through the Services. The cumulative Components in a Project are found or identified by the Services during the review of proprietary code that Customer or its Authorized Users analyze through the Services.
- “Content” means text, graphics, images, music, software, audio, video, designs, proprietary code, interactive features, works of authorship of any kind, data, analytics, and information or other materials that are transmitted, processed, posted, generated, provided or otherwise made available through the Services.
- “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
- “Order” means an ordering document that Customer and Zeplin enter into from time to time and which specifies the details about the Services contracted for, including, but not limited to, number of Authorized Users, number of Components or Projects, Service Fees, and subscription period.
- “Order Term” has the meaning ascribed to the term in Section 12(b).
- “Project” means each individual application, Component or source code project that Authorized Users work on pursuant to their use of the Services.
- “Reseller” means an authorized partner or reseller of Zeplin.
- “Services” means the design application collaboration and development platform, the component analytics tools, and related tools and services, as applicable, provided by Zeplin to Customer hereunder and as set forth in the Order. Such tools and services may be identified by the product names “Zeplin,” “Omlet,” and other names of products from Zeplin.
- “Third Party Technology” means links to third-party websites, resources, or technology including without limitation, third party services, which are compatible with the Services, or plugins or extensions for the Services that Customers and Authorized Users use with the Services.
- “Workspace” means a unique digital space designated for Customer where a group of Authorized Users may access Projects and use the Services.
- “Zeplin Content” means any Content that Zeplin makes available through the Services (excluding Customer Data).
2. Registration; Authentication Credentials; Security
- Registration. Subject to Customer’s compliance with the terms of this Agreement, Customer and Authorized Users may register to the Services by creating an online Account. Each Authorized User must agree to Zeplin’s Terms of Service available at https://zeplin.io/terms to access the Services. Customer agrees to provide and to ensure Authorized Users provide complete, accurate and current information when registering an Account to use the Services, and shall update such registration information promptly should it change or become inaccurate.
- Authentication Credentials. Customer will create a user identification and associated secure access credentials for access to the Services. Customer is responsible for maintaining the confidentiality of all user identifications and access credentials for Authorized Users and for ensuring that each user identification number and/or access credential is used by only one Authorized User and not shared with any third party or any other Authorized User. Customer is solely responsible for any and all activities that occur under its Account and all charges incurred from the use of the Services accessed from its Account. Customer agrees to immediately notify Zeplin of any unauthorized use of Customer’s Account, any user identification and/or access credentials, or any other breach of security known to Customer. Intentional sharing of, or allowing the continuation of shared use of an Authentication Credential, is a direct violation of the terms set forth in this Section. Zeplin shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
- Administrators. Administrators will control the use of the Services by all Authorized Users of Customer, including but not limited to adding or removing Authorized Users, enabling or disabling third-party integrations, and managing Workspaces and permissions. Any Customer Data that Authorized Users transmit, process, submit or upload to the Services may be monitored, retained, accessed, used, modified, shared, or removed by the Administrator. In the event that the Services are procured by Customer or its Authorized Users through a Reseller, then the Reseller may serve as an Administrator with respect to certain rights or obligations of Customer, including but not limited to matters pertaining to billing and payment for the Services. Customer is responsible for whom it allows to become an Administrator and any actions they take. Customer agrees that Zeplin’s responsibilities do not extend to the internal management or administration of the Services for Customer.
The Services. During the relevant Order Term, Zeplin will make the Services available to Customer and its Authorized Users solely for Customer’s internal business purposes in accordance with the limitations set forth in the Order(s). Each Order is subject to and governed by all of the terms and conditions contained in this Agreement.
Restrictions. Customer will not allow access to or use of the Services by anyone other than Authorized Users. Customer shall not, directly or indirectly, and shall not permit any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on any element of the Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and its Affiliates; (v) perform, publish or disclose to third parties any performance or benchmark tests or analyses relating to the Services or the use thereof without Zeplin’s prior written consent; or (vi) use the Services for any purpose other than its intended purpose.
Acceptable Use Policies. Customer will not (and will not allow its Authorized Users to) use the Services in any way, or post, upload, publish, submit, process or transmit any Customer Data, that: (i) infringes, misappropriates or violates any third party’s Intellectual Property Rights, or rights of publicity, privacy or confidentiality; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is unlawful, harmful, defamatory, obscene, pornographic or otherwise objectionable material of any kind or nature; or (v) contains viruses, worms, Trojan Horses, corrupted files, or any other similar software or programs, harmful code or data that may damage the operation of the Services or another’s computer or mobile device. In addition, Customer will (and will require its Authorized Users to): (i) use the Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations ; (ii) not use the Services to send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (iii) not interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; (iv) not avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Zeplin or any of Zeplin’s providers or any other third party (including another user) to protect the Services or Content, and immediately notify Zeplin of any breach, or attempted breach, of security known to Customer; (v) not attempt to probe, scan or test the vulnerability of any Zeplin system or network or breach any security or authentication measures; (vi) not interfere or disrupt networks connected to the Services; (vii) not interfere with another customer’s use and enjoyment of the Services; (viii) not attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Zeplin or other generally available third-party web browsers; (ix) not use, display, mirror or frame the Services or any individual element within the Services, Zeplin’s name, any Zeplin trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Zeplin’s express written consent; (x) not access, tamper with, or use non-public areas of the Services, Zeplin’s computer systems, or the technical delivery systems of Zeplin’s providers; (xi) not use any meta tags or other hidden text or metadata utilizing a Zeplin trademark, logo, URL or product name without Zeplin’s express written consent; (xii) not forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, and not use the Services or Content to send altered, deceptive or false source-identifying information; (xiii) not collect or store any personally identifiable information from the Services from other users of the Services without their express permission; (xiv) not misrepresent an affiliation with any person or entity; and (xv) not encourage or enable any other third party to do any of the foregoing.
Zeplin may remove or disable access to any Content posted or stored using the Services or transmitted through the Services that violates the terms of this Agreement, without notice to Customer. Notwithstanding the foregoing, Customer acknowledges and agrees that Zeplin does not monitor or police communications or Customer Data transmitted through the Services and that Zeplin will not be responsible for the content of any such communications or transmissions. Customer shall be solely responsible and liable for the completeness, integrity, quality and accuracy of Customer Data input into the Services.
Third Party Technology. Zeplin provides Third Party Technology only as a convenience and is not responsible for the content, products or services on or available from Third Party Technology or for the functioning or failure to function of any such Third Party Technology. Customer and Customer’s Authorized Users are solely responsible for, and assume all risk arising from, the use of any Third Party Technology, including compliance with the terms and conditions governing use of such Third Party Technology. ANY THIRD PARTY TECHNOLOGY DOWNLOADED OR OTHERWISE OBTAINED OR USED IN CONNECTION WITH THE SERVICES IS SO DOWNLOADED, OBTAINED OR USED AT CUSTOMER’S AND AUTHORIZED USERS’ DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR AND CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST ZEPLIN WITH RESPECT TO SUCH USE, INCLUDING, BUT NOT LIMITED TO ANY DAMAGE TO COMPUTER SYSTEMS OR DISPLAY DEVICE, OR LOSS OF DATA, THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH THIRD PARTY TECHNOLOGY.
Evaluations, Trials, and Betas. Zeplin may offer certain Services to Customer at no charge, including trial use and beta versions (“Beta Services”). Customer’s use of Beta Services is subject to any additional terms that Zeplin specifies and is only permitted during the term Zeplin designates (or, if not designated, until terminated in accordance with this Agreement). The terms of this Agreement and Zeplin’s Terms of Service fully apply to Beta Services and Zeplin may modify or terminate Customer’s right to use Beta Services at any time and for any reason in its sole discretion, without liability. Customer understands that any Beta Services and their features and functionality are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Services. Zeplin makes no promises that any Beta Services will ever be made generally available. All information regarding the characteristics, features or performance of any Beta Services, and any communication that Zeplin may engage in with Customer relating to the Beta Services, constitutes Zeplin’s Confidential Information as defined in Section 8(a). To the maximum extent permitted by applicable law, Zeplin disclaims all obligations or liabilities with respect to Beta Services.
4. Customer Obligations
- Enforcement. Customer will ensure that all its Authorized Users comply with the terms and conditions of this Agreement. Customer will promptly notify Zeplin of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Zeplin with respect to: (i) investigation by Zeplin of any suspected or alleged violation of this Agreement and (ii) any action by Zeplin to enforce the terms and conditions of this Agreement. Zeplin may suspend or terminate any Authorized User’s access to the Services upon notice to Customer in the event that Zeplin reasonably determines that such Authorized User has violated the terms and conditions of this Agreement or any other agreement between Zeplin and such Authorized User pursuant to which such Authorized User is permitted to access and use the Services. Customer will be liable for any violation of the terms and conditions of this Agreement by any Authorized User.
- Authentication. Customer shall maintain appropriate technical mechanisms where such mechanisms are solely relied upon by Zeplin to restrict access to Content. Where SAML SSO is used, and where Customer’s technology cannot give such assurances at a technical level, Customer represents and warrants that all positive authentication assertions sent from their IdP to Zeplin were authenticated by their IdP over a method of at least as secure as the SAML method “Password, Protected Transport”.
5. Customer Data
- Customer Data Representations. Customer represents and warrants that: (i) it has all rights, power and authority that are necessary for Zeplin’s collection, use and processing of the Customer Data as contemplated by this Agreement; (ii) Customer’s and Authorized Users’ use and provision of Customer Data to Zeplin pursuant to this Agreement will not breach any agreement between Customer and any third party or violate any applicable local, state, federal, or foreign laws, regulations, orders or rules (including without limitation, data privacy and security laws), and (iii) the Customer Data or the use of Customer Data as contemplated by this Agreement does not infringe, misappropriate or violate a third party’s rights including without limitation, any Intellectual Property Rights or rights of privacy or publicity of a third party.
- Disclaimer. ZEPLIN WILL FOLLOW ITS STANDARD ARCHIVAL PROCEDURES FOR STORAGE OF ANY CUSTOMER DATA. IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA, ZEPLIN WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO RESTORE THE LOST OR CORRUPTED CUSTOMER DATA FROM THE LATEST BACKUP OF SUCH CUSTOMER DATA MAINTAINED BY ZEPLIN IN ITS REGULAR COURSE OF BUSINESS. ZEPLIN WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF CUSTOMER DATA. ZEPLIN’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 5(b) WILL CONSTITUTE ZEPLIN’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
6. Fees and Payment
- Fees. Customer agrees to pay the amounts listed on the Order(s) then in effect between Customer and Zeplin, as fees for the Services (“Service Fees”). Zeplin reserves the right to reasonably increase the Service Fees charged for the Services at the end of an Order Term.
- Payment Terms. Unless otherwise provided in an Order, Zeplin will invoice Customer for the Service Fees in advance for one full year at the beginning of the Initial Order Term, and thereafter annually (each, a “Payment Period”). Customer agrees to pay the invoiced Service Fees within 30 days from the date of an invoice (“Net 30 days”). In the event Customer increases the number of Components or Authorized Users (other than any free Projects or Authorized Users specified in the Order) during an Order Term, such increase will result in an incremental Order and Customer will pay the Service Fee specified on the then-current Order for each such additional Components or Authorized Users, invoiced immediately for a prorated amount based on the date of increase through the end of the then-current Payment Period (each, an “Incremental Order”). If the then-current Order does not specify a Service Fee for each such additional Authorized Users, then such amount shall be set forth by Zeplin in the Incremental Order. For non-terminating Orders, the cumulative number of additional Components or Authorized Users from all such Incremental Orders in the then-current Payment Period will increase the Order subscription for the following Payment Period accordingly.
- Overdue Charges. Without limiting its rights or remedies, Zeplin may add an interest charge of 1.5% per month or the highest rate permitted by applicable law, whichever is lower, to any Service Fees that is not received by the due date.
- Taxes. The Service fees are exclusive of all sales, use, value-added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Zeplin’s net income).
- Cancellation and Suspension of Services. Zeplin may suspend its Services if Customer fails to pay the applicable Service Fees or any other amounts payable under this Agreement when due, including through Resellers as applicable. Zeplin reserves the right to cease the operation of its Services at its sole discretion or to cancel Customer’s subscription to the Services if Zeplin has reason to believe that Customer is not compliant with any of its obligations under this Agreement or the applicable law; provided Zeplin refunds Customer the pro-rated amount of Service Fees for the remaining Order Term.
- Resellers. In the event that Services are procured or administered on behalf of Customer by any Reseller, Customer agrees that Zeplin may disclose relevant Customer and Authorized User information to such Reseller as needed to facilitate Zeplin’s invoicing for and receipt of Service Fees under this Agreement. Customer Order details (e.g., the Services that Customer is entitled to use, the number of Authorized Users, the Order Term, etc.) will be as stated in the Order placed with Zeplin by the Reseller on Customer’s behalf. Resellers are not authorized to modify this Agreement or make any promises or commitments on Zeplin’s behalf, and Zeplin is not bound by any obligations to Customer other than as set forth in this Agreement.
- Zeplin Services. As between Zeplin and Customer, all right, title and interest in the Services, Zeplin Content , and any other Zeplin materials furnished or made available hereunder, and all modifications and enhancements thereof, including all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Zeplin or Zeplin’s licensors and providers, as applicable. Customer acknowledges that the Services and Zeplin Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Zeplin Content. Subject to Customer’s compliance with this Agreement (including payment of all applicable Service Fees), Zeplin grants to Customer and its Authorized Users during the Term, a limited, non-exclusive, non-transferable, revocable right to access and use the Zeplin Content solely for its personal, non-commercial use in connection with the use of the Services permitted under this Agreement and the relevant Order.
- Feedback. If Customer chooses to provide Zeplin suggestions, ideas, know-how, enhancement requests, recommendations, or feedback regarding the Services (“Feedback”), Customer acknowledges, agrees, and hereby grants to Zeplin and its Affiliates a royalty-free, transferable, irrevocable, worldwide, fully paid-up, and perpetual license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice, implement, modify, commercially exploit and/or incorporate the Feedback into Zeplin’s products, services, and documentation.
- Customer Data. As between Zeplin and Customer, all right, title and interest in the Customer Data and all Intellectual Property Rights therein, belong to and are retained solely by Customer and nothing in this Agreement will be deemed to transfer any ownership of Customer Data to Zeplin or restrict any rights that Customer may have to use and exploit Customer Data. By transmitting or making any Customer Data available through the Services. Customer hereby grants to Zeplin and its Affiliates a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, access, process, save, store, modify, create derivative works based upon, distribute, transmit, publicly display, and publicly perform the Customer Data solely in connection with operating and providing the Services, including the provision of requested technical support, if any; provided that Zeplin shall not transfer or give access to Customer Data to any third party without Customer’s prior written consent other than in connection with operating and providing the Services.
- Aggregate Data. Zeplin may monitor Customer’s use of the Services, and create usage data and information related to such use and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregate Data”). As between Zeplin and Customer, all right, title and interest in the Aggregate Data and all Intellectual Property Rights therein, belong to and are retained solely by Zeplin, and Zeplin may use such information to the extent and in the manner it deems fit including without limitation, as required by applicable law or regulation and for purposes of data gathering, analysis, enhancement and improvement of Services, research and development, for future product and service offerings, and marketing, provided that no such Aggregate Data identifies Customer, its Authorized Users, or its Confidential Information.
- Copyright Policy. Zeplin respects copyright law and expects its users to do the same. While Zeplin has no obligation to monitor any Customer Data submitted, processed, transmitted, or uploaded by Customer in connection with the Services, if Zeplin deems it necessary, Zeplin may: 1) remove such Customer Data from the Services without liability, 2) suspend Customer’s access to the Services, or 3) terminate Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Zeplin’s Copyright and IP Policy at https://zeplin.io/copyright, for further information.
- Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, Customer Data is considered to be Confidential Information of Customer.
- Exclusions. The obligations and restrictions set forth in Section 8(c) will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
- Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees, contractors, Affiliates, agents, or professional advisors (“Representatives”) who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such Representative is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in Section 8. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own confidential information, but in no event less than a reasonable standard of care.
- Permitted Disclosures. The provisions of Section 8 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
- Right of Publicity. Notwithstanding anything to the contrary in this Section 8, Customer agrees that Zeplin may identify Customer as a Zeplin customer in its promotional materials. In such case Zeplin will comply with any of Customer’s reasonable trademark or related style or usage guidelines, and Zeplin will promptly stop identifying Customer as a customer in its promotional materials upon Customer’s request sent to email@example.com. Aside from the foregoing, any and all other publicity concerning this Agreement by Zeplin or Customer, including but not limited to the issuance of press releases, will require mutual written consent.
9. WARRANTY DISCLAIMER
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZEPLIN AND ITS AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ZEPLIN OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. ZEPLIN AND ITS AFFILIATES MAKE NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ZEPLIN AND ITS AFFILIATES MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT.
- Infringement Indemnity by Zeplin. Zeplin will defend any suit or action brought against Customer or its Affiliates to the extent that it is based upon a third party claim that the Services (excluding Customer Data), as provided by Zeplin to Customer pursuant to this Agreement, infringe any copyright or misappropriate any trade secrets of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Customer. Zeplin shall have no obligation under this Section 10(a) to the extent any claim is based on or attributable to (i) Customer Data, (ii) Customer’s unauthorized use of the Services or breach of this Agreement, or (iii) Customer’s combination of the Services with any third party materials. Furthermore, Zeplin’s obligations under this Section 10(a) are contingent upon: (A) Customer providing Zeplin with prompt written notice of such claim; (B) Customer providing reasonable cooperation to Zeplin, at Zeplin’s expense, in the defense and settlement of such claim; and (C) Zeplin having sole authority to defend or settle such claim. THE PROVISIONS OF THIS SECTION 10(a) SET FORTH ZEPLIN’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
- Indemnity by Customer. Customer will defend any suit or action brought against Zeplin or its Affiliates to the extent that it is based upon Customer’s breach of its representations and warranties in Section 5(a) of this Agreement and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Zeplin. Customer’s obligations under this Section 10(b) are contingent upon: (i) Zeplin providing Customer with prompt written notice of such claim; (ii) Zeplin providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (iii) Customer having sole authority to defend or settle such claim.
11. Limitation of Liability
- Limitation on Direct Damages. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ITS AFFILIATES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER AND ITS AFFILIATES IN THE TWELVE (12) MONTH PERIOD PRIOR TO SUCH CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
- Waiver of Consequential Damages. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, LICENSORS OR SUPPLIERS BE LIABLE FOR LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. ZEPLIN WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- Essential Purpose. Customer acknowledges that the terms in this Section 11 are an essential basis of the bargain described in this Agreement and that, were Zeplin to assume any further liability, the Fees would out of necessity, be set much higher.
12. Term and Termination
- Term. This Agreement will commence on the Effective Date and shall continue in force and effect until terminated in accordance with this Agreement (“Term”). Termination or expiration of this Agreement shall not terminate any existing Orders, and the terms of this Agreement shall survive for purposes of governing such Orders. No new Orders or Order renewals may be entered into under this Agreement by the Parties after expiration or termination of this Agreement.
- Order Term. The term for each Order will commence on the effective date of the Order and will continue for the subscription term referenced in the Order (“Initial Order Term”). Thereafter, for Orders with an Order Term of 12 months or less, the term for each Order will renew automatically for additional periods as stated in the Order (“Renewal Order Term”) unless one party notifies the other in writing at least thirty (30) calendar days in advance of the end of the then current Order Term of its intention not to renew. The Initial Order Term and Renewal Order Terms are referred to collectively as the “Order Term”. Termination or expiration of a particular Order does not terminate any other Order.
- Termination for Cause. Either party may terminate this Agreement or any Order thereunder upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach.
- Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of an applicable Order, Customer’s and its Authorized Users’ right to access and use the Services will immediately terminate, Customer and its Authorized Users will immediately cease all use of the Services, and each party will return or destroy, and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Zeplin, in accordance with its ordinary business practices and at its sole discretion, may: destroy or otherwise dispose of any Customer Data in its possession unless Zeplin receives, no later than ten (10) days after the effective date of the expiration or termination of such Order, a written request for the delivery to Customer of the then most recent back-up of the Customer Data, following which Zeplin will use reasonable efforts to deliver the back up to Customer within thirty (30) days of its receipt of such a written request, in an industry-standard format reasonably acceptable to Zeplin. Zeplin may retain any Customer Data in its ordinary back-ups subject to its ordinary deletion practices, provided that such Customer Data is put beyond use or not otherwise reasonably accessible. Upon expiration or termination of an applicable Order, Zeplin will cease use of any Customer Marks that Zeplin had been granted prior permission for use thereof; provided, however, that (i) Zeplin will have a reasonable time to remove the Customer Marks from promotional materials, (ii) Zeplin will be entitled to exhaust materials printed during the Term that include the Customer Marks, and (iii) Zeplin will not be required to remove any such printed materials from circulation. Without limiting the generality of the foregoing, Customer’s right to use the Services under a particular Order is based upon the terms and conditions of that Order in addition to the terms and conditions of this Agreement. Accordingly, upon the expiration or termination of an Order, Customer’s (and its Authorized Users’) right to use the Service under that Order will also terminate.
- Survival. The rights and obligations of Zeplin and Customer contained in Sections 1 (Definitions), 2(b) (Authentication Credentials), 3(d) (Third Party Technology), 5 (Customer Data), 6 (Fees and Payment), 7 (Ownership), 8 (Confidentiality), 9 (Warranty), 10 (Indemnity), 11 (Limitation of Liability), 12(d) (Rights and Obligations upon Expiration or Termination), 12(e) (Survival) and 13 (General) will survive any expiration or termination of this Agreement.
- Governing Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the Northern District of California. Zeplin and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
- Waiver; Severability. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
- Notices. All notices, including notices of address change, required to be sent hereunder will be in writing and will be sent to the addresses set forth above; delivered in person; or sent by email to the Designated POC as listed in Section 14. The notices will be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; (c) three (3) days following the date such notice was mailed by first class mail; or (d) at the time when the email is accepted by the receiving party’s email system.
- Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
- Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
- Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, upon written notice. Any attempted assignment or transfer in violation of this Section 13(g) will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
- Affiliates. A Customer Affiliate may enter into an Order under this Agreement and, in such case, by entering into the Order, the Affiliate agrees to be bound by the terms and conditions of this Agreement with respect to such Order and such Affiliate will be considered to be Customer, as such term is used herein, with respect to such Order. This Agreement is intended for the benefit of the parties who have entered into an Order under this Agreement and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
- Entire Agreement. This Agreement, and the exhibits attached hereto (including any Order and Addenda), constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
- Conflict. In the event of an inconsistency between an Order and this Agreement, the terms of the Order will prevail to the extent of such inconsistency. In the event of a conflict between any addendum to this Agreement and the terms of this Agreement, the terms of this Agreement will prevail, unless otherwise specifically provided in the addendum by referring to the provision of this Agreement that the addendum overrides. Any additional or different terms or conditions issued by Customer in any purchase order are hereby rejected by Zeplin and this Agreement supersedes any additional or different terms proposed by Customer in a purchase order or similar document, except as otherwise separately agreed in writing by Zeplin.
- Counterparts; Headings. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. The headings in this Agreement are for the convenience of reference only and have no legal effect.
14. Designated POC
Customer and Zeplin agree to designate one or more points of contact for notices, billing, and privacy and security issues (“Designated POC”). The Designated POC for Zeplin is firstname.lastname@example.org. The default Designated POC for Customer is the billing contact email as entered in the Customer’s Zeplin Account. It is the responsibility of the Customer to ensure this email address is accurate, current, and accessible by an Administrator or someone capable of administering the Customer’s Zeplin Account.