Products Trial Agreement (for Partners)
ZEOTAP PRODUCTS TRIAL AGREEMENT
This Zeotap Products Trial Agreement, together with its Schedules (the “Terms”) is made and entered into on the Effective Date between zeotap GmbH, a company incorporated under the laws of Germany and having its registered office at c/o WeWork, Warschauer Platz 11-13, 10245 Berlin, Germany (hereinafter referred to as “Zeotap”) and the existing or prospective Zeotap Products partner signing the Zeotap Products Trial Form which references these Terms (hereinafter referred to as the “Partner”). Zeotap and Partner shall hereinafter be referred to individually as “Party” and, collectively, as “Parties.” These Terms along with the Zeotap Products Trial Form constitute the agreement between the parties (collectively referred to as the “Agreement“).
IT IS AGREED AS FOLLOWS:
1.1 As used in this Agreement, the following terms shall have the following meanings, with such definitions to be applicable to both the singular and plural use of the terms:
“Applicable Laws” means all the legislation and enactment or orders that are applicable to any of the Parties. In particular, any applicable law relating to the processing, privacy and use of personal data, including, without limitation: (i) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and any corresponding national laws; (ii) any applicable laws regarding bribery and corruption; (iii) any judicial or administrative interpretation of any of the above, including any binding guidance, approved codes of conduct or approved certification mechanisms; and (iv) any other applicable laws, rules, and regulations, including, to the extent applicable, industry self-regulations.
“Confidential Information” includes all trade secrets, proprietary information, know-how, and any confidential information delivered by or on behalf of the disclosing Party to the receiving Party or its representatives furnished during the term of these Terms and regardless of the manner in which it was furnished, including all analyses, compilations, studies or other documents or records prepared by the receiving Party and its representatives to the extent such analyses, compilations, studies, documents or records contain, otherwise reflect, or are generated from such Confidential Information provided by the disclosing Party.
“Digital Property” means a domain, native app, mobile app, connected device, or digital instance owned or administered by Partner on which the Zeotap Products are deployed and on which the Zeotap Products may be used solely for the purposes of this Agreement.
“Effective Date” the date of the last signature on the Zeotap Products Trial Form.
“Force Majeure” means any event beyond the reasonable control of either Party including, among other things, unpredictable adverse weather conditions, war, acts of God, acts of terrorism, floods, earthquakes or civil disturbance (but excluding labour disputes, strikes, industrial action or lockouts by the Party, or such Party’s staff, seeking to rely on Force Majeure).
“Intellectual Property” means any rights in or in relation to any patent, copyright, database rights in relation to software, utility model, trademark (whether registered or not), brand name, service mark, trade secrets and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and existing anywhere in the world.
“MSA” means the then current Master Services Agreement available at https://zeotap.com/legal-hub/master-services-agreement/, which governs the provision of Zeotap Products by Zeotap to its clients, including any document referenced therein (in particular, the Data Processing Addenda and the Client Use of Products and System Policy). For the purposes of this Agreement, all references to “Client” under the MSA shall be interpreted as references to “Partner”.
“Overage Charges” means the overage charges due by the Partner if the Zeotap Products Usage Thresholds specified in the Zeotap Products Trial Form are exceeded.
“System” means the Zeotap Unity Dashboard that may be accessed by the Partner to use the Zeotap Products.
“Term” means the period described in clause 4.1 of these Terms.
“Territory” means the territory as defined in the Zeotap Products Trial Form.
“Usage Thresholds” means the maximum number of Known Users, Events Processed, Yearly Impression or other usage units (as specified on the Zeotap Products Trial Form) that can be used within the applicable Zeotap Products for the purposes of this Agreement.
“User” means any individual who uses the System on Partner’s behalf and/or through Partner’s account or passwords.
“Zeotap Party” means Zeotap, its affiliates, directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Zeotap Parties”).
“Zeotap Products” means Zeotap’s products, including those as described at https://zeotap.com/wp-content/uploads/2021/08/Zeotap-2021-Product-description-one-pagers.pdf and as updated or modified from time to time.
“Zeotap Products Trial Form” means the Zeotap Products Trial Form executed by both parties which references these Terms and details the trial arrangement between the parties and any other additional terms in respect of the arrangement.
Zeotap Products Trial
2.1 During the Term, Zeotap will provide the Zeotap Products to the Partner solely for the purposes of (i) training its personnel on the features, functions and capabilities of such Zeotap Products, (ii) demonstrating the features, functions and capabilities of such Zeotap Products to its existing and prospective customers, (iii) improving its ability to properly represent, promote or market the Zeotap Products, or (iv) developing the skills to properly implement, deploy and support the Zeotap Products.
2.2 Zeotap will set up User account(s) or enable an instance of the Zeotap Products specified on the Zeotap Products Trial Form, and permit Partner’s use of those Zeotap Products for the purposes set out in clause 2.1.1, subject to the terms and conditions of this Agreement.
2.3 The Partner will ensure that either (a) its use of the Zeotap Products does not exceed the Usage Thresholds, or (b) if its use of the Zeotap Products exceeds the Usage Thresholds, it will pay the Overage Charges invoiced by Zeotap according to Section 3 below.
2.3 Partner will supply Zeotap personnel with such information, resources, and assistance as Zeotap may reasonably request in connection with Zeotap making the Zeotap Products available to Partner for the purposes as provided herein.
3. Zeotap Products Trial Terms and Conditions
3.1 The Partner accepts and agrees to be bound by the terms of the MSA, incorporated herein by reference.
3.2 The Partner shall:
3.2.1 prevent unauthorized access to or use of the Zeotap Products and notify Zeotap promptly of any such unauthorized access or use of which Partner is aware;
3.2.2 use the Zeotap Products only for its own internal business operations for the purposes of this Agreement and only on Digital Properties owned or administered by Partner; and
3.2.3 use the Zeotap Products only in accordance with the Applicable Laws and this Agreement, and refrain from any action that may damage Zeotap’s reputation or the reputation of the Zeotap Products.
3.3 Except as expressly permitted in the Agreement or may be permitted by Applicable Laws that is incapable of exclusion by agreement between the parties, or unless otherwise agreed with Zeotap in writing, Partner shall not:
3.3.1 use all or any part of the Zeotap Products for any commercial use or purpose other than the purposes of this Agreement;
3.3.2 make available or deploy the Zeotap Products, including its content or documentation, or any portion thereof for use by, access to, or for the benefit of any third party;
3.3.3 copy, make alterations to, or modifications of, the whole or any part of the Zeotap Products or permit the Zeotap Products or any part of it to be combined with, or become incorporated in, or attached to any other programs or hardware except for the Zeotap Products;
3.3.4 disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Zeotap Products (or any component thereof) or attempt to do any such thing;
3.3.5 be concerned or interested either directly or indirectly in the development, sale, promotion, marketing of any products or services which compete with the Zeotap Products, or have substantially similar functionality; or
3.3.6 access or use all or any part of the Zeotap Products for any illegal activities.
4. Invoicing and Payment
4.1 The Zeotap Products are made available hereunder solely for the purposes set out in clause 2.1.1 and without fees, provided Partner does not exceed the Usage Thresholds specified for the Zeotap Products on the Zeotap Products Trial Form. If Partner exceeds the Usage Thresholds, then Zeotap will invoice Partner, and Partner will pay the Overage Charges in the amounts specified on the Zeotap Products Trial Form.
4.2 Partner shall pay invoices from Zeotap in full and without deduction within thirty (30) days from the date of invoice and in accordance with any terms specified therein.
4.3 If Zeotap has not received payment for any invoices which are not the subject of a bona fide dispute by the due dates, then without prejudice to any other rights and remedies of Zeotap,
(i) Zeotap may suspend and/or disable Partner’s and Users’ access to all or part of the Zeotap Products and/or System and Zeotap shall be under no obligation to provide any or all of the Zeotap Products while the invoice(s) concerned remain unpaid;
(ii) Zeotap shall be entitled to recover all reasonable legal fees and other reasonable costs associated with the collection of such amounts; and
(iii) Zeotap will charge a delayed payment charge at the rate of 1.5% per month compounded monthly (or, if less, the maximum amount allowed by Applicable Laws).
4.4 All amounts and fees stated or referred to in the Agreement are non-refundable and are exclusive of any applicable taxes.
4.5 Partner shall pay Zeotap any tax that is due or provide Zeotap with satisfactory evidence of Partner’s exemption from the tax in advance of invoicing.
4.6 Partner shall provide Zeotap with accurate and adequate documentation sufficient to permit Zeotap to determine if any tax is due.
4.7 In the event the tax authorities in one country claim in accordance with its domestic tax law and a potentially applicable double taxation treaty that withholding taxes must be withheld from the payments to be made by the Partner to Zeotap under this Agreement, such withholding taxes shall be borne by the Partner.
4.7 Partner agrees to timeously provide Zeotap with accurate factual information and documentation of Partner’s payment of any such withholding taxes.
4.9 As far as possible and appropriate, the Parties will lodge an appeal against the assessment of the withholding tax.
4.`10 The Parties shall support each other in every possible respect, especially with regard to possible applications for refunds of withholding taxes paid. If Zeotap receives any refund of withholding taxes which have been borne by the Partner, Zeotap will remit the received payments to the Partner.
5. Term and Termination
5.1 The Term shall commence on the Effective Date and continue until the expiration of the trial period specified in the Zeotap Products Trial Form unless earlier terminated in accordance with this Agreement (the “Initial Term“). Thereafter, the Agreement shall automatically renew for successive 12 (twelve) month periods (or such other period as specified in the Zeotap Products Trial Form (each a “Renewal Term”) unless terminated by either Party on 30 (thirty) days’ written notice prior to the end of the respective Initial Term or relevant Renewal Term.
5.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other at any time with immediate effect upon written notice if the other party: (i) materially breaches any of its obligations hereunder and such breach remains not rectified for a period of 30 (thirty) days after the date the non-breaching Party provides written notice of such breach; or (ii) becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, has a trustee or receiver appointed for it, becomes the subject of any voluntary or involuntary insolvency or dissolution, bankruptcy or reorganization proceeding, which, in the case of any involuntary proceeding, is not dismissed within 60 (sixty) days after it is commenced, or discontinues its business.
5.3 On termination or expiration of the Agreement for any reason:
5.3.1 Partner’s rights of use granted under the Agreement shall immediately terminate;
5.3.2 Partner shall promptly pay all monies due or to become due under the Agreement through the effective date of termination and for the remainder of the then current Initial Term or Renewal Term as applicable; and
5.3.3 all documents, data, materials, products, and equipment placed at the disposal of the Partner remain in the property of Zeotap. The Partner is required to return it all without delay and without request to Zeotap upon the termination of this Agreement. Zeotap reserves the right to demand the deletion or destruction of such materials in lieu of their return.
6.1 Each Party shall hold all Confidential Information from the other Party in the strictest confidence and shall not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than as permitted under this Agreement. Confidential Information does not include information which (i) is known to the receiving Party at the time of disclosure as evidenced by written records of the receiving Party, (ii) has become publicly known and made generally available through no wrongful act of the receiving Party, or (iii) is identified by the disclosing Party as no longer proprietary or confidential.
6.2 Obligations with respect to Confidential Information shall survive the termination of this Agreement for a period of three (3) years.
6.3 Following termination of this Agreement and upon request of the disclosing Party, all Confidential Information in any form and any copies thereof in the custody and control of the receiving Party will be deleted, destroyed or returned.
7. Intellectual Property
7.1 Each Party and/or its licensors shall remain the sole owner of its respective Intellectual Property. All suggestions, enhancements requests, feedback, recommendations or other input provided by Partner or Clients or any other party relating to the Zeotap Products will be owned by Zeotap. Neither this Agreement nor its performance transfers from Zeotap to Partner or Client any Zeotap Intellectual Property. Zeotap reserves all rights not expressly granted under this Agreement, and there are no implied rights granted by Intellectual Property hereunder.
8. Disclaimer of Warranties
8.1 Zeotap makes no warranties except those expressly stated in the MSA.
8.2 Zeotap offers no warranties regarding third party products or services.
8.3 Zeotap does not warrant that use of the Zeotap Products or any component thereof will be uninterrupted or error-free.
8.4 Without limiting the foregoing, Zeotap shall not be responsible for outages, end-user connection speed, data loss, or connectivity problems or any other loss or damage resulting from use of the Zeotap Products and/or third-party applications or the transfer of data over communications networks and facilities, including the internet, and Partner acknowledges that the Zeotap Products may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.5 Except as expressly provided for in this clause 7 Zeotap (and its affiliates and suppliers) to the extent permitted by applicable law, disclaims all other warranties, express, implied or statutory, including without limitation warranties, terms and conditions of merchantability, accuracy, correspondence with description, fitness for a particular purpose or use, and satisfactory quality, and non-infringement.
9. Limitation of Liability
9.1 To the maximum extent permitted by applicable law, in no event will either party be liable to the other for special, consequential, incidental or other indirect damages, or for loss of profits, anticipated savings, business opportunity, goodwill, or loss of revenue, loss of use or loss of data (including corruption of data), or costs of procurement of substitute goods or services arising of the Agreement, howsoever caused and under any theory of liability (including contract, tort, negligence or otherwise) even if the other party has been advised of the possibility of such damages.
9.2 To the fullest extent allowed by law, Zeotap’s entire liability under this Agreement shall not exceed the sum of EUR 10,000.
9.3 Nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
10.1 Partner will indemnify, hold harmless and (at Zeotap’s option) defend Zeotap and each Zeotap Party from and against any claim, loss, cost, liability or damage, including attorneys’ fees, for which any Zeotap Party becomes liable arising from or relating to any breach or alleged breach by Partner of any term of this Agreement and Applicable Laws..
11.1 Each Party shall act as an independent contractor and not as an agent of the other Party. This Agreement is not intended to constitute, create, give effect to, or otherwise recognize a joint venture, partnership or formal business entity of any kind. This Agreement is non-exclusive and the either Party may enter into Partner agreements with any other party, at any time, without notice.
11.2 Neither Party shall be considered in breach of this Agreement to the extent that performance of their respective obligations is prevented by an event of Force Majeure. The affected Party shall as soon as possible give notice to the other Party of an event of Force Majeure upon it being foreseen by, or becoming known to the affected Party. The Parties shall use their reasonable endeavours to: (i) overcome the effects of the event of Force Majeure; (ii) mitigate the effect of any delay occasioned by any event of Force Majeure; and (iii) ensure resumption of normal performance of this Agreement as soon as reasonably practicable and shall perform their obligations to the maximum extent practicable.
11.3 During the Term, Partner agrees that Zeotap may refer to this Agreement in a press release and use the Partner’s logo on its website and in other promotional materials for the purposes of identifying Partner as a Partner of Zeotap Products.
11.4 Zeotap reserves the right to audit Partner’s compliance with the terms of this Agreement. Any audit will be conducted during normal business hours and will not unreasonably interfere with Partner’s normal business operations. Zeotap will provide Partner with not less than five (5) business days advance notice of its intention to conduct an audit. Partner will provide Zeotap or its designated representatives and agents (who shall be subject to customary confidential information protection agreements) with copies of, or access to, such books and records as are reasonably requested and related to confirmation of Partner’s compliance with the terms of this Agreement.
11.5 All notices must be in English, in writing, addressed (i) in the case of Zeotap to [email protected], and (ii) in the case of Partner to the postal address or email address detailed in the Zeotap Products Trial Form, or such other address as either Party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
11.6 This Agreement supersedes all other commitments, negotiations and understandings. This Agreement cannot be amended except in writing and signed by both Parties. This Agreement cannot be assigned without written consent of the non-assigning Party, except that either Party may assign this Agreement (i) to an acquirer of substantially all of that Party’s assets, stock or business by sale, merger or otherwise or (ii) to a corporate affiliate. Zeotap may assign its rights and obligations under the Agreement when the Applicable Laws provides for an automatic succession, to its Affiliates or in connection with the change of control transactions, including mergers, sales of all or substantially assets.
11.7 In the event of conflict or inconsistency between any such terms and conditions, the following order of precedence will apply: 1) the Zeotap Products Trial Form, 2) these Terms and 3) any other terms or documentation attached hereto or referenced herein.
11.8 This Agreement shall be binding upon the Parties and their respective heirs, successors and assigns. Neither Party shall assign this Agreement or any part thereof without the prior written consent of the other than by operation of law.
11.9 A failure or neglect by either Party to enforce or exercise (in whole or in part) at any time any of the provisions of this Agreement shall not be construed or be deemed to be a waiver of its rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such Party’s rights to take subsequent action.
11.10 If any provision of this Agreement is unenforceable in any jurisdiction, the unenforceability will not invalidate the remaining provisions or affect the validity or enforceability of the provision in relation to any other Party or in any other jurisdiction.
11.12 This Agreement shall be interpreted, construed and governed in accordance with laws of the Federal Republic of Germany and the Parties submit to the exclusive jurisdiction of the competent court of the city of Berlin, Germany. The Parties hereby irrevocably waive any objection to the choice of the competent court on the grounds of venue or forum non conveniens or similar grounds.