Enterprise Server License Agreement

The following terms and conditions (“Agreement”) apply to the software licensed by Comet ML Inc. (“Comet”) for which you (the “Customer”) have accepted the applicable Order Form, and shall be effective until or unless there is a signed agreement between the parties otherwise governing the license of the Comet Platform. Terms not otherwise defined herein shall have the meanings ascribed to them in the Order Form.

1. 1. DEFINITIONS

   For the purposes of this Agreement, the definitions set forth in this section shall apply to the respective terms:

   1. “Agreement” means this Agreement including any related Order Form(s).
   2. “Comet Platform” means the Comet Experiment Management Platform.
   3.  “Contract Year” means the period of time beginning on the Start Date and ending one (1) year thereafter, and repeating on the same dates each year thereafter during the Term.
   4. “Customer Data” means any data, information, applications, or other electronic items originated by Customer or its Users that Customer or its Users submit to the Comet Platform and/or IS produced by the Comet Platform for Customer.
   5. “Documentation” means the related materials customarily supplied or made available by Comet to customers relating to the Comet Platform, including without limitation printed and on-line documentation, on-line help, and training materials.
   6. “Order Form” means an order form signed by Customer and relating to the license of the Comet Platform.
   7. “User” means an end user of Comet Platform who is a single distinct employee acting within the scope of their employment with Customer or Customer’s consultant or contractor acting within the scope of the services they provide for Customer or on Customer’s behalf.
   8. “User Count” means the actual number of Users that have been registered to use the Comet Platform.

2. 2. GRANT OF LICENSES TO CUSTOMER

   1. Right of Access and Use. Subject to the terms and conditions of this Agreement, Comet grants to Customer a non-exclusive, non-transferable and non-sublicensable right for Customer and its Users to: (i) install, copy and use the Comet Platform on systems and equipment owned by, controlled by or managed on behalf of Customer, solely for Customer’s internal business purposes, and solely in accordance with the applicable Documentation; (ii) access and use the Comet Platform as installed on Customer’s on systems and equipment; and (iii) access and use the Customer Data produced by the Comet Platform for Customer. Customer may also maintain a reasonable number of copies of the Comet Platform on its systems for backup and recovery purposes. Comet shall provide to Customer, without any additional charge, access to all updates, upgrades, maintenance releases and bug fixes to the Comet Platform to the extent generally released to other on-premise customers. Comet may add or remove capabilities to the Comet Platform at its sole discretion, provided that no such change in the Comet Platform shall result in a material degradation of features, functions or capabilities offer to Customer.
   2. Professional Services. Customer may order installation, configuration, and other professional services that are identified on an Order Form. Customer shall reimburse Comet for reasonable out-of-pocket expenses, including, but not limited to, travel, meals and lodging expenses, incurred by Comet in connection with the performance of these professional services.
   3. Customer Responsibilities. Customer shall: (i) be responsible and liable for any action or inaction of Users that is in breach of this Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer (and Users) acquire, upload, transmit and process Customer Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Comet Platform, and notify Comet promptly of any such unauthorized access or use; (v) be responsible for obtaining and maintaining appropriate equipment needed to connect to, access or otherwise use the Comet Platform, including, without limitation, computers, computer operating systems and web browsers; and (vi) be responsible for properly configuring and using the Comet Platform and taking steps to maintain appropriate security, protection and backup of Customer Data.
   4. License Limitations. Copies of the Comet Platform are licensed for use only and not sold. Customer and its customers may not: (i) distribute, sell, license, provide or otherwise make the Comet Platform available to third parties except to Users as expressly provided herein; (ii) use the Comet Platform on behalf of third parties, whether on a service bureau, SaaS, time sharing basis, or otherwise except as otherwise expressly provided herein; (iii) use the Comet Platform in any way that is in violation of any applicable laws; (iv) modify the Comet Platform or permit or encourage any third party to do so; (v) alter or remove any proprietary notices or legends contained on or in the Comet Platform; (vi) release, publish, and/or otherwise make available to any third party the results of any performance, functional or security evaluation of the Comet Platform without the prior written approval of Comet; (vii) defeat or circumvent any controls or accounting within the Comet Platform; (viii) use the Comet Platform in any manner or assist or take part in the development, marketing, or sale of a product potentially competitive with the Comet Platform; (ix) use the Comet Platform, or allow the transfer, transmission, export, or re-export of the Comet Platform or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; (x) modify, remove, or obstruct any copyright or other proprietary rights statements or notices contained within the Comet Platform; (xi) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Comet Platform except to the extent source code is necessarily provided for the ordinary operation of the Comet Platform; or (xii) allow, assist or permit others to do any of the foregoing.
   5. Ownership. It is expressly understood by Customer and agreed that, as between Comet and Customer, Comet is the sole and exclusive owner of all right, title and interest in the Comet Platform; provided, however, Customer shall be the sole and exclusive owner of any Customer Data, exclusive of the Comet Platform itself. Each party hereby reserves all rights not expressly granted under this Agreement.
   6. Consent. Customer agrees to be identified as a customer of Comet and Comet may refer to Customer by name, trade name and trademark, if applicable, and may briefly describe Customer’s business in Comet’s marketing materials and web site. Comet may issue a press releases referencing the relationship of the parties under this Agreement, releases will be subject to Customer’s written approval of content, which will not be unreasonably withheld or delayed.

3. 3. FEES

   1. Fees. During the Term of this Agreement, Customer shall pay to Comet the fees (“Fees”) set forth on the Order Form.
   2. Payments. All payments to Comet are to be made in U.S. Dollars to Comet at the address listed above, and pursuant to the terms set forth on the Order Form. Any amount not paid within thirty (30) days from the date due shall bear interest from such date until paid at the lessor of 1.5% per month (18% per annum) or the maximum rate permitted by applicable law.
   3. Taxes. Customer shall be responsible for all taxes or charges of any kind in connection with this Agreement (including but not limited to, customs duties, government permit, tariffs, excise, gross receipts, sales and use and value added tax), except income tax or corporation tax (or similar taxes) imposed on Comet.
   4. Records. Comet or its agents may, with fifteen (15) days’ notice, audit Customer’s records and inspect Customer’s facilities to verify its compliance with the provisions of this Agreement. If an audit indicates an underpayment of five percent (5%) or more of any amounts due hereunder or other non-monetary noncompliance, Customer will promptly reimburse Comet for the reasonable cost of the audit. Such rights will remain in effect through a period ending one year from the termination of this Agreement. Comet or its agents may be required to execute a Non-Disclosure Agreement relating to any such audit.

4. 4. TERM AND TERMINATION

   1. Term. Unless otherwise terminated in accordance with the terms and conditions of this Agreement, the term of this Agreement shall commence upon the Start Date and continue through the Initial Term set forth in the Order Form. Unless a party notifies the other party in writing at least ninety (90) days prior to the expiration of the Term (including any Renewal Term) of this Agreement of its decision not to renew this Agreement, this Agreement shall automatically renew for successive one (1) year periods (each a “Renewal Term”). The Initial Term as extended by each Renewal Term is sometimes herein referred to as the Term.
   2. Termination for Cause. Without prejudice to any other rights, if either party materially defaults in the performance of this Agreement, then the non-breaching party may give written notice to the defaulting party of such material default. If the noticed default is not cured within sixty (60) calendar days (or ten (10) days in the case of non-payment) following receipt of default notice by the defaulting party, then the non-breaching party shall have the immediate right to terminate this Agreement. This Agreement may be terminated by a party (i) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days.
   3. Termination for Assignment. If an assignment is attempted without consent when consent is required, then the non-breaching party may, upon written notice to the breaching party, terminate this Agreement immediately for cause and any provision hereof with respect to cure will not apply to termination.
   4. Effect of Termination. Upon any termination or expiration of this Agreement: (i) all access, rights and licenses granted to Customer hereunder shall terminate; (ii) Customer shall cease using the Comet Platform; and (iii) Customer shall destroy (or at Comet’s option, return) all copies of the Comet Platform. Any Fees already paid by Customer to Comet are non-refundable. Sections 2.4, 2.5, 3, 4, 5, 6, 7 and 8 shall survive termination of this Agreement.

5. 5. WARRANTY & LIMITATION OF LIABILITY

   1. General Warranty. Each party represents and warrants to the other party that (i) it has all necessary right, power and authority to enter into this Agreement, and (ii) it has the right to provide and license the Comet Platform under this Agreement. Comet represents and warrants that the Comet Platform, to its knowledge, does not contain any matter that does or will infringe any copyright, trade secret, trademark, patent, or other intellectual property right of any third party.
   2. Software Warranty. Comet warrants that the Comet Platform will materially conform to the Documentation. Customer must notify Comet of any material deficiencies with the Comet Platform within ten (10) days from provision of deficient software in order to receive any warranty remedy for such deficiency. For any breach of the forgoing warranty, Customer’s exclusive remedy shall be for Comet to use commercially reasonable efforts to correct such deficiency, provided that if correction in compliance with this warranty is not possible or practical, Customer’s sole remedy shall be to terminate the applicable Term.
   3. Restrictions. The express warranties specified above do not apply if the Comet Platform or any portion thereof: (i) has been altered, except by or on behalf of Comet; (ii) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement or Documentation, or any update or upgrade has not been installed where such update or upgrade would have resolved the issue; (iii) is used on equipment, products, or systems not meeting specifications identified by Comet in the applicable Documentation or (iv) is licensed, for beta, evaluation, or testing purposes. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to Comet within the applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by Comet. Comet shall have no responsibility for errors in, loss of, or damage to Customer Data, regardless of the cause of any such errors, loss, or damage, nor shall Comet be responsible for the security of or any security incident related to the storage, transfer or processing of Customer Data.
   4. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, PERFORMANCE AND THOSE ARISING BY STATUTE OR FROM CUSTOM OR USAGE OF TRADE OR COURSE OF DEALING. COMET DOES NOT GUARANTEE THE SECURITY OF ANY CUSTOMER DATA OR THAT THE OPERATION OF THE COMET PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, AND CUSTOMER ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR COMET TO DO SO.
   5. LIMITATION OF LIABILITY. IN NO EVENT WILL COMET BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT, BY REASON OF NEGLIGENCE OR OTHERWISE, FOR PUNITIVE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE COMET PLATFORM, THE STORAGE, TRANSFER, OR PROCESSING OF CUSTOMER DATA, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF COMET, ITS SUBSIDIARIES, ITS AFFILIATES, OR COMET’S COMETS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. CUSTOMER AGREES THAT COMET’S ENTIRE LIABILITY HEREUNDER FOR DAMAGES SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER WITHIN THE SIX-MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE THE LIABILITY THAT GAVE RISE TO DAMAGES WAS INCURRED.

6. 6. INDEMNIFICATION

   1. Indemnification by Comet. Comet shall indemnify Customer, or at its option, defend Customer against any third party claim, suit or proceeding brought against Customer based on a claim that the Comet Platform infringes upon any U.S. patent, copyright, or trade secret of any third party, and will pay any costs, damages, fines, settlement and reasonable attorney’s fees (the “Liabilities”) attributable to any such claim, suit, or proceeding, provided that Customer gives Comet prompt written notice of, reasonable assistance with respect to, and sole control of the defense and settlement of such claims; and provided further that Customer not enter into any settlement or compromise any such claim without Comet’s prior written approval. Notwithstanding the foregoing, Comet shall have no liability to Customer or to any other party for Liabilities arising from or attributable to (i) any combination of the Comet Platform with any other software or equipment not provided by Comet, or the Customer Data; (ii) the modification of the Comet Platform, or any part thereof, by anyone other than Comet; (iii) unauthorized use of the Comet Platform; (iv) use of the Comet Platform not contemplated by the Documentation; or (v) claims or potential claims of which Customer has knowledge of prior to the Start Date. Customer will take reasonable actions to prevent or mitigate any actual or potential Liabilities. Should the use of the Comet Platform be enjoined, or in the event Comet wishes to minimize its potential liability hereunder, Comet may, at its option, either: (i) substitute a functionally equivalent non-infringing Comet Platform; (ii) modify the infringing item so that it no longer infringes; (iii) obtain for Customer, at Comet’s expense, the right to continue use of such item; or (iv) in lieu of the foregoing, Comet may take back such infringing item or items and refund to Customer the fees paid therefor. The foregoing in this Section shall be Comet’s sole liability and Customer’s sole remedy for infringement or misappropriation of third-party intellectual property or proprietary rights, which liability shall in no event exceed amounts paid hereunder.
   2. Indemnification by Customer. Customer shall indemnify Comet, or at its option, defend Comet against any claim, suit or proceeding brought against Comet arising from Customer’s use of the Comet Platform, apart from those matters for which Comet has indemnified Customer hereinabove. Comet will assist Customer in taking reasonable actions to prevent or mitigate actual losses and liabilities, at Customer’s expense.

7. 7. CONFIDENTIALITY

   1. Confidential Information. The term “Confidential Information” means any information disclosed by one party to the other pursuant to this Agreement that is in written, graphic, machine-readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, or that a reasonable person otherwise would consider confidential or proprietary in nature under the circumstances, including, without limitation, computer programs, algorithms, names and expertise of employees and consultants, know-how, formulae, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information). Confidential Information may also include oral information disclosed by one party to the other pursuant to this Agreement, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by the disclosing party within a reasonable time (not to exceed 30 days) after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to the receiving party, or a reasonable person otherwise would consider such disclosure confidential or proprietary in nature under the circumstances.
   2. Confidentiality. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party, other than on a need to know basis to its agents and representatives that are bound to maintain the confidentiality thereof. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
   3. Exceptions. Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party; (ii) was rightfully known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of the Confidential Information; (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party, without breach of any agreement,; or (vi) is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement. The receiving party may disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the receiving party provides prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Comet may refer to Customer as a customer.
   4. Confidentiality of Agreement. The specific terms and conditions of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of the parties; (iv) in confidence, to accountants, banks, and financing sources and their advisors; (v) in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.

8. 8. MISCELLANEOUS

   1. Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by facsimile, by electronic transmission confirmed received, by overnight courier, or by certified or registered mail return receipt requested, and shall be deemed given upon personal delivery, upon receipt of electronic transmission, upon confirmed receipt, or five (5) calendar days after deposit in the mail.
   2. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
   3. Assignment. This Agreement shall be binding on the parties hereto and their respective successors and assigns. This Agreement may not be assigned by either party without the prior written approval of the other party. Notwithstanding the above, a party may assign to a successor party in interest without obtaining such consent provided that, all of the following conditions must be met: (i) such assignment is in connection with a merger or corporate reorganization, by operation of law, or in connection with a sale of all or substantially all of the assets to which this Agreement relates; (ii) the assigning party provides written notice to the non-assigning party prior to the effective date of such assignment; and (iii) there is a written agreement, wherein the party to which the rights are assigned accepts all the duties and obligations of the assignor hereunder. Any attempted assignment not authorized hereunder shall be null and void.
   4. Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Customer and Comet, and the Agreement shall not be deemed to create any rights in third parties, including Customers’ customers, or to create any obligations of a party to any such third parties.
   5. Waiver. The waiver by either party of a breach of any provisions contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
   6. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objective of such provision within the limits of applicable law or applicable court decisions.
   7. Controlling Law & Forum. This Agreement, and all claims or causes of action that may be based upon, arise out of or relate to this Agreement, shall be governed by and construed in accordance with the Laws of the State of New York, and shall be subject to the exclusive jurisdiction of the courts located in New York County, New York and the parties hereby submit to the personal jurisdiction and venue of these courts.
   8. No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
   9. Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
   10. Entire Agreement. This Agreement and any related Order Form completely and exclusively states the agreement of the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of Customer and Comet by their duly authorized representative and any provision of a purchase order purporting to supplement or vary the provisions hereof shall be void.