ELVEX - BETA SAAS AGREEMENT

COVER PAGE

The attached documents describe the relationship between Elvex, Inc. (“Company”) and the customer identified below (“Customer”). The document attached to this Cover Page entitled “Terms and Conditions” (the “Terms”) describes and sets forth the general legal terms governing the relationship between the parties (collectively, the “Agreement”). This Agreement, including the attached Terms, will become effective on the Contract Start Date (the “Effective Date”), once this Cover Page is executed by authorized representatives of both parties.

CONTRACT DETAILS:

SERVICES:

Customer will receive unlimited access to the elvex platform throughout the term of this Agreement.

TERMS AND CONDITIONS

1. BETA SERVICES. Company is developing a proprietary, cloud-based software platform to enable use of AI and LLM technologies with AI Features (the “Services”). Customer wishes to utilize an evaluation “Beta” version of the Services, and Company desires to make a beta version of the Services available to Customer, subject to the following terms and conditions. Subject to the terms and conditions of this Agreement, Company hereby grants Customer, during the Term (as defined below), non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services on its own behalf solely for the purpose of evaluating the performance and functionality of the Services (the “Limited Purpose”) and subject to the usage limitations set forth on the Cover Page (“Usage Limitations”). The term of this Agreement shall begin on the Effective Date and continue until the Contract End Date (the “Term”), provided, that the parties may mutually agree in writing to extend the Term. Customer acknowledges that the Services have Artificial Intelligence enabled features (“AI Features”) that require an integration with third party generative artificial intelligence services, such as ChatGPT by OpenAI, that are subject to their own terms and conditions utilizing the Customer’s own account credentials with such services. Company is not responsible for “input” entered into the AI Features, or “output” recovered from such AI Features. It is entirely the responsibility of Customer to ensure that no sensitive, confidential, or otherwise proprietary information is entered into such AI Features. Customer further acknowledges that any such response from AI Features should not be relied upon during emergencies, may not generate accurate information, and that Company does not provide any warranties or guarantees as to the accuracy of any information provided by AI Features. Customer’s use of Services will be subject to Company’s then current Terms of Use and Privacy Policy as published on Company’s Website.
2. INTELLECTUAL PROPERTY. The Services (excluding the Customer Content (defined below) hosted thereon), Documentation, and all other materials provided by Company hereunder, including but not limited to all manuals, reports, records, programs, data and other materials (“Documentation”), and all intellectual property rights in each of the foregoing, are the exclusive property of Company and its suppliers. Customer agrees that it will not, and will not permit any other party to: (a) permit any party to access the Services or any Documentation; (b) modify, adapt, alter or translate the Services or Documentation; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e) use or copy the Services or Documentation except for the Limited Purpose; (f) publish or disclose to any third party any performance benchmark tests or analyses or other non-public information relating to the Services or the use thereof; or (g) use the Services or Documentation 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 law, regulation, or rule.
3. CUSTOMER CONTENT. “Customer Content” means (a) any and all information, data, texts, files, images and other materials that is provided, imported or otherwise used by or on behalf of Customer with the Services and AI Features. As between Customer and Company, Customer will at all times remain the exclusive owner of such Customer Content. Customer hereby grants to Company a non-exclusive, worldwide, royalty-free and fully paid license (i) to use the Customer Content as necessary to provide the Services and AI Features to Customer and (ii) to use aggregated and anonymized Customer Content (A) to improve the Services and Company’s related product and service offerings; (B) to create new products and services relating to the Services (including analytics services such as providing benchmarking); and (C) to generate and disclose statistics regarding use of the Services, provided, however, that no Customer -only statistics will be disclosed to third parties without Customer’s consent.
4. FEES AND PAYMENTS. Customer will pay to Company the fees set forth on the Cover Page (“Fees”). Customer will be billed according to the Billing Frequency and Payment Terms set forth on the Cover Page. In the event Customer exceeds the Usage Limitations, Customer’s use of the Services will be subject to additional Fees applicable to that level of usage. Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Services and suspend Customer’s access to the Services if any Fees are overdue until such amounts are paid in full. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the license of the Services to Customer.
5. FEEDBACK. Customer understands and agrees that the Services represent a Beta version of unreleased software and services that may contain bugs, defects, and errors. In exchange for the licenses granted to Customer to use such software, Customer agrees to use good faith efforts to test, use, and evaluate the Services in live operations, and to promptly report to Company, either orally or in writing, any errors, problems, defects, or suggestions for changes and improvements to the Services (collectively, “Feedback”). Customer acknowledges and agrees that all Feedback and all intellectual property rights therein are the exclusive property of Company, and hereby assigns to Company, all right, title and interest to any and all Feedback. Further, Customer acknowledges and agrees that Feedback may be used by Company in Company’s development of and be incorporated into a version of the Services that Company may make available for commercial distribution (“Commercial Release”) or any other software or intellectual property created by Company. Without limiting the foregoing, Company may incorporate Feedback into its products and services and Customer will gain no rights in such products or services by virtue of having disclosed Feedback. Customer agrees and acknowledges that the products and services incorporating such Feedback will be the sole and exclusive property of Company, and Customer will gain no right, title or interest in or to the Services, Documentation or any Commercial Release by virtue of Customer’s provision of Feedback to Company or for any other reason. Company has no obligation to create, distribute or otherwise offer a Commercial Release, and in the event of such Commercial Release, Company has no obligation to offer the Commercial Release to Customer or to offer Customer any discounted pricing schedules or special terms. Customer understands and agrees that the Commercial Release may contain functions and functionality, and perform in a manner significantly different from the current beta version of the Services. Accordingly, Customer acknowledges that any research or development performed, or business plans made, by Customer regarding or in reliance upon the Services are done entirely at Customer’s own risk.
6. AUTHORIZATION; CUSTOMER WARRANTIES. CUSTOMER HEREBY GRANTS TO COMPANY ALL NECESSARY RIGHTS TO PERFORM THE SERVICES AND REPRESENTS AND WARRANTS THAT YOU OWN OR HAVE ALL NECESSARY RIGHTS TO PERMIT THE FOREGOING AND THAT THE FOREGOING WILL NOT VIOLATE ANY RIGHTS OF ANY THIRD PARTY. IN ADDITION, CUSTOMER AGREES TO PROVIDE COMPANY, WITH PROOF OF SUCH AUTHORIZATION AS WE REASONABLY REQUEST. IN ADDITION, CUSTOMER REPRESENTS AND WARRANTS THAT ITS USE OF THE SERVICES WILL NOT VIOLATE ANY APPLICABLE LAWS, RULES OR REGULATIONS OR THE RIGHTS OF ANY THIRD PARTY. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY FOR ANY BREACH OF THIS SECTION.
7. DISCLAIMERS OF WARRANTIES. Customer acknowledges that the Services are a Beta version and contain prerelease code for testing purposes only and are not at the level of performance and compatibility of a final, generally available product offering. Furthermore, Customer acknowledges that the Services may contain bugs, errors, omissions and other problems that could cause system or other failures and data loss. Customer acknowledges that Company may not introduce a product similar to or compatible with the Services. Accordingly, Customer acknowledges that any research, development or other work that Customer performs regarding the Services is done entirely at Customer’s own risk. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, AND ALL OTHER DOCUMENTATION AND MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE SERVICES OR DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, ACCURACY, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, SYSTEM INTEGRATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES IS WITH CUSTOMER NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
8. INDEMNIFICATION AND LIMITATION OF LIABILITY.
   1. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Company’s option, defend Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights; or (ii) based on Customer's or any Authorized User's negligence or willful misconduct or use of the Cloud Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
   2. IN NO EVENT WILL COMPANY OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT OR CUSTOMER’S USE OF THE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY, RELATED TO THIS AGREEMENT, OF COMPANY AND ITS SUPPLIERS SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTHS EXCEEDING THE EVENT GIVING RISE TO THE CLAIM. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9. CONFIDENTIALITY. From time to time during the Term, Company and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors, who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
10. TERM AND TERMINATION. This Agreement commences upon the Effective Date and will continue in effect until the end of the Term. Company may terminate this Agreement upon written notice to Customer in the event that Customer (a) breaches this Agreement, (b) uses the Services in violation of this Agreement or the Documentation, (c) uses the Services in violation of applicable laws, rules or regulations or to engage in unethical scraping, reverse engineering or crawling. Customer may terminate this Agreement upon written notice to Company. Upon termination or expiration of this Agreement, Customer shall immediately cease all use of Services, and delete or destroy all copies of the Documentation in the possession or control of Customer. Sections 3 (Customer Content), 4 (Fees and Payments), 5 (Feedback), 6 (Authorization; Customer Warranties), 7 (Disclaimers of Warranties), 8 (Limitation of Liability), 9 (Confidentiality), 10 (Term and Termination) and 11 (General Provisions) will survive the termination or expiration of this Agreement.