PLEASE CAREFULLY READ THESE TERMS OF SERVICE (“TERMS”) BEFORE USING THE DEEPNOTE PRODUCTS (AS DEFINED BELOW) OFFERED BY DEEPNOTE, INC. (“DEEPNOTE”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS (INCLUDING ELECTRONIC ACCEPTANCE, IN THE CASE OF A ONLINE TRANSACTION) WITH DEEPNOTE WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS CUSTOMER (AS DEFINED BELOW), YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THESE TERMS ON BEHALF OF SUCH BUSINESS CUSTOMER AND TO BIND SUCH BUSINESS CUSTOMER TO THESE TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA DEEPNOTE’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY DEEPNOTE SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. Users; Order Forms; Deepnote Products; Modification of Terms
- Deepnote allows both individual users (“Individual Customers”) and entities (“Business Customers”) to create an account through Deepnote’s websites and mobile applications to access the Deepnote Products (an “Account”). “Customer” as used herein refers to either Individual Customers or Business Customers, as applicable. Individual Customers acknowledge and agree that if such Customer signs up for an Account using an email associated with an employer or other organization who later enters into (or currently has) an agreement for the Deepnote Products with Deepnote (an “Entity Agreement”), then such Individual Customer’s Account may be merged with or subsumed by such employer’s or other organization’s Account (an “Entity Account Transfer”). Following an Entity Account Transfer, this agreement will terminate with respect to such Individual Customer, and any further use of the Deepnote Products will be pursuant to the applicable Entity Agreement.
- Upon mutual execution, an Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Deepnote grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Deepnote product(s) and/or service(s) specified in such Order Form (collectively, the “Deepnote Product,” or “Deepnote Products”) during the applicable Term (as defined below) for either the internal business or personal purposes of Customer, as applicable, in accordance with these Terms.
- Deepnote reserves the right, in its sole discretion, to modify or replace these Terms at any time. If a revision is substantial, Deepnote will try to provide at least a thirty (30) day notice prior to any new terms taking effect; provided that what constitutes a substantial change will be determined at Deepnote’s sole discretion. By continuing to access or use the Deepnote Products after any revisions to these Terms become effective, Customer agrees to be bound by the revised terms. If you do not agree to the new terms, you must stop using the Deepnote Products.
2. Account; Access
Customer must provide accurate, complete and updated account information regarding Accounts, and Individual Customers may only create a single Account. Customer shall be responsible for maintaining the security of Customer’s Account, password(s) (including but not limited to administrative and user passwords, if applicable) and files, and for all uses of Customer Account with or without Customer’s knowledge or consent. Business Customers shall cooperate with Deepnote in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Deepnote Products.
3. Restrictions and Responsibilities
- Except as otherwise expressly set forth in the Documentation (defined below), Customer will not (and will ensure that no third party nor any of its users of the Deepnote Products), directly or indirectly: (i) 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 Deepnote Products, any software or data related to the Deepnote Products (“Software”)or any user documentation that Deepnote makes generally available to its users (“Documentation”), except to the extent the foregoing restrictions are prohibited by applicable law; (ii) reproduce, duplicate, copy, modify, translate, or create derivative works based on the Deepnote Products or any Software (except to the extent expressly permitted by Deepnote or authorized within the Deepnote Products); (iii) sell, resell, use the Deepnote Products or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove, deface, obscure or alter any proprietary notices, branding or labels from the Deepnote Products or any output or results thereof; (v) use the Deepnote Products to build an application or product that is competitive with any Deepnote product or service; (vi) interfere or attempt to interfere with the proper working of the Deepnote Products or any activities conducted on the Deepnote Products; (vii) violate the guidelines as stated in the Acceptable Use Policy (located at https://deepnote.com/docs/acceptable-use-policy) (viii) bypass any measures Deepnote may use to prevent or restrict access to the Deepnote Products (or other accounts, computer systems or networks connected to the Deepnote Product); or (ix) use the Deepnote Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, export control laws of the United States and laws or regulations concerning consumer and child protection, obscenity or defamation). In addition, Customer agrees that unless otherwise expressly agreed to in writing with Deepnote, it shall not provide any information to Deepnote (through the Deepnote Products or otherwise) that is considered (i) “personal health information” (“PHI”), as defined under the Health Insurance Portability and Accountability Act, unless Customer has entered into a separate agreement with Deepnote relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, drivers’ license numbers or other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (v) “sensitive” personal data, as defined under the European Union’s General Data Protection Regulation or any other applicable data privacy law, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life or the commission or alleged commission any crime or offense. Notwithstanding anything herein to the contrary, Customer shall not submit any PHI to Deepnote without first executing a Business Associate Agreement (BAA) with Deepnote; and if inactivity timeouts are mandated by Customer’s security policies, Customer is responsible for implementing such timeouts using “screen locks” on endpoint devices.
- Deepnote reserves the right to monitor the use of the Deepnote Products for security and operational purposes and make modifications to the features and functionality of the Deepnote Products during the Term. Deepnote may immediately suspend Customer’s access to the Deepnote Products if (i) Deepnote reasonably believes that a user or Customer is in breach of this Agreement; (ii) a user or Customer engages in excessive utilization of the Deepnote Products which affects, or could reasonably likely affect (in Deepnote’s reasonable opinion), system availability or performance, or (iii) if Deepnote in good faith suspects that any third party has gained unauthorized access to the Deepnote Products using Customer’s Account. Deepnote will use commercially reasonable efforts to provide Customer with reasonable notice prior to taking any such action, but Customer acknowledges that in exigent circumstances, notice may be provided after taking such action. Deepnote will restore Customer’s access to the Deepnote Products following resolution of the issue that caused the suspension. In addition, Deepnote reserves the right to delete or disable any content (including Customer Data) that is in breach of this Agreement.
- Deepnote may make some Deepnote Products available to academic, non-profit and/or educational Customer Accounts (“Education Accounts”) free of charge (“Free Services”). Deepnote reserves the right to verify Customer’s eligibility for an Education Account, and Customer will provide all information reasonably requested by Deepnote in connection with any such verification. Education Accounts are for academic/non-profit, noncommercial use only. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation or Order Form. Usage over these limits requires Customer’s purchase of additional capacity to use the Deepnote Products. Customer agrees that Deepnote, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Deepnote will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Deepnote terminates Customer’s account, except as required by law, Deepnote will provide Customer a reasonable opportunity to retrieve its Customer Data. THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND DEEPNOTE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE DEEPNOTE’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). CUSTOMER SHALL BE FULLY LAIBILE UNDER THIS AGREEMENT TO DEEPNOTE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
4. Proprietary Rights
- Customer shall own all right, title and interest in and to any data, information or other material provided, uploaded, or submitted by Customer in the course of using the Deepnote Products (“Customer Data”). Customer hereby grants Deepnote a nonexclusive, worldwide, royalty free license to store, use, copy, archive, modify, display, and make available (in accordance with Customer’s sharing settings) Customer Data as necessary for Deepnote to provide, operate and maintain the Deepnote Products provided to Customer. In addition, Deepnote may use usage patterns, trends, and other statistical data derived from use of the Deepnote Products (but not Customer Data itself) for the purposes of providing, operating, maintaining, or improving the Deepnote Products and any products and services used to deliver the Deepnote Products.
- Deepnote shall own and retain all right, title and interest in and to (i) the Deepnote Products and Software, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Implementation Assistance or support, and (iii) all intellectual property rights related to any of the foregoing.
- Customer, not Deepnote, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Deepnote as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy).
- Customer may (but is not obligated to) provide suggestions, comments or other feedback to Deepnote with respect to the Deepnote Products (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Deepnote notwithstanding anything else. Deepnote acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Deepnote a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
- Customer will pay Deepnote the fees described in the Order Form in accordance with the terms therein (the “Fees”). If Customer’s use of the Deepnote Products exceeds the any capacity or other limitations set forth on the Order Form, Customer will pay any additional Fees associated with such use (and Deepnote reserves the right to limit Customer’s usage). Deepnote reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term (as defined below) or the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Deepnote has billed Customer incorrectly, Customer must contact Deepnote’s customer support department to be eligible to receive an adjustment or credit.
- Deepnote will bill Customer through the payment method provided by Customer and/or via an invoice. For invoices, unless otherwise set forth on an Order Form, full payment for invoices issued in any given month must be received by Deepnote thirty (30) days after the date of receipt 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 Agreement if payment has not been made within fourteen (14) days after receipt of notice of late payment. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Customer shall be responsible for all taxes associated with Deepnote Products other than U.S. taxes based on Deepnote’s net income.
6. Terms; Termination; Survival;
- Subject to earlier termination as expressly provided in this Agreement, unless otherwise set forth in an Order Form, this Agreement is for the Initial Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
- In addition to any other remedies it may have, either party may terminate this Agreement: (i) on thirty (30) days’ prior written notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s notice (subject to any shorter time limitations as are set forth in the Agreement, including, but not limited to, Section 5.2 for late payment); (ii) immediately on written notice if: (a) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (b) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ninety (90) days; or (c) the other party is adjudged bankrupt or insolvent. Customer will pay in full for the Deepnote Products up to and including the last day on which the Deepnote Products are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- If this Agreement has terminated (other than in connection with an Entity Account Transfer), Customer’s Account will be disabled and Customer may not be granted access to Customer’s Account or any files or other content (including Customer Data) contained in Customer’s Account. After termination of this Agreement, except in cases where an Individual Customer’s content and files have been transferred in connection with an Entity Account Transfer, Customer may request that Deepnote delete all content and files contained in Customer’s Account, and Deepnote shall use reasonable efforts to do so. Deepnote reserves the right to maintain residual copies of Customer Data for backup purposes.
7. Third Party Services
Customer or its users may choose to use the Deepnote Products with certain Third Party Products (defined below). Use of Third Party Products is subject to Customer’s agreement with the relevant provider of such Third Party Products and are not provided by Deepnote and not governed by, or subject to, the terms and conditions in this Agreement. To the fullest extent permitted under applicable law, Deepnote will have no liability for Customer’s or its users’ use of Third Party Products, including their security, functionality, operation, availability, or interoperability or how the Third Party Products or their providers use Customer Data (including any personal data contained therein). By enabling or otherwise using a Third Party Product with the Deepnote Products, Customer hereby authorizes Deepnote to access and exchange Customer Data with the Third Party Product on Customer’s behalf. For the avoidance of doubt and notwithstanding anything in this Agreement or the DPA (if applicable) to the contrary, the parties acknowledge and agree that the providers of Third Party Products shall be deemed Customer’s data processors and not Deepnote’s data processors. “Third Party Products” means certain third party applications, integrations, systems, or services used by Customer, but not supplied or owned by Deepnote, that interoperate with the Deepnote Products.
8. Data Privacy and Security
9. WARRANTY DISCLAIMER
DEEPNOTE DOES NOT WARRANT THAT THE DEEPNOTE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DEEPNOTE PRODUCTS. THE DEEPNOTE PRODUCTS SHOULD NOT BE USED, AND ARE NOT LICENSED FOR, USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. DEEPNOTE PRODUCTS AND IMPLEMENTATION ASSISTANCE IS PROVIDED “AS IS” AND DEEPNOTE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Customer and Deepnote (each, an “Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim (i) in the case of Customer as Indemnitor, (a) that Customer’s use of the Deepnote Products and Customer’s Account infringes, violates, or misappropriates any third party intellectual property right, or (b) arising from Customer’s breach of Section 3.1, or (ii) in the case of Deepnote as Indemnitor, that the Deepnote Products, infringe, violate, or misappropriate any third party intellectual property right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). Deepnote will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Deepnote Products (i) not supplied by Deepnote (including, without limitation, any Customer Data), (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Deepnote, (iv) combined with other products, processes or materials not provided by Deepnote where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Deepnote Products is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Deepnote Products are held by a court of competent jurisdiction to be or are believed by Deepnote to be infringing, Deepnote may, at its option and expense (a) replace or modify the Deepnote Products 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 Deepnote Product, 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 Deepnote Product.
11. Limitation of Liability
EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, CUSTOMER’S BREACH OF SECTION 3, AND EXCEPT FOR BODILY INJURY OF A PERSON, IN NO EVENT SHALL DEEPNOTE, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND DEEPNOTE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO DEEPNOTE FOR THE DEEPNOTE PRODUCTS UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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. Neither party may assign any of its rights or obligations hereunder without the other party’s written consent; provided that (i) for Individual Customers, Deepnote may transfer the Customer Data (or portion thereof) as set forth in Section 1.1 hereof, (ii) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (iii) Deepnote may utilize subcontractors in the performance of its obligations hereunder. This Agreement, the Order Form(s) and the DPA (if applicable) are 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. To the extent these Terms conflict with an Order Form, the Order Form shall prevail. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Customer acknowledges that any use of the Deepnote Products contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Deepnote Products, may cause irreparable injury to Deepnote, its affiliates, suppliers and any other party authorized by Deepnote to resell, distribute, or promote the Deepnote Products, and under such circumstances Deepnote and such parties will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Deepnote in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices must be sent to the contacts listed for each party in the Order Form, except for general product updates and other reasonable customer announcements which may be sent to the primary account. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. Customer otherwise agrees to reasonably cooperate with Deepnote to serve as a reference account upon request. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.