PLATFORM AGREEMENT

This Platform Agreement (this “Agreement”) is by and between Elipsa, Inc. (“Elipsa”), and the entity you identified as entering in to this Agreement (“Company”), and is effective as of the date you click “Accept” on behalf of such entity (the “Effective Date”). 

BY CHECKING THE BOX INDICATING YOU HAVE READ AND AGREED TO THIS AGREEMENT AND CLICKING “ACCEPT”, YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT ON BEHALF OF COMPANY.  IN ADDITION, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND COMPANY TO THIS AGREEMENT; AND (II) YOU AGREE ON BEHALF OF COMPANY TO THIS AGREEMENT.  IF COMPANY DOES NOT AGREE TO THESE PROVISIONS, DO NOT CHECK THIS BOX.  CHECKING THIS BOX AND USING THE ELIPSA PLATFORM ESTABLISHES A BINDING AGREEMENT BETWEEN COMPANY AND ELIPSA.  ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO ACCESSING AND USING THE ELIPSA PLATFORM.

  1. Access to Elipsa Platform; Restrictions.

    1. Elipsa Platform.  Elipsa offers a platform (the “Elipsa Platform”) that allows organizations to build and deploy predictive models (“Models”).  Subject to the terms and conditions hereof, including without limitation payment of all amounts due, Elipsa shall provide Company with access to the Elipsa Platform for use by Company solely for its internal business purposes during the Term.

    2. Authorized Users.  The Elipsa Platform shall be used and accessed only by Authorized Users.  “Authorized Users” shall mean employees of Company who are authorized to access the Elipsa Platform using a user identifier and password provided to Company by Elipsa or set-up by Company. Company shall not make available the Elipsa Platform to any person or entity other than Authorized Users, shall use commercially reasonable efforts to prevent unauthorized access to or use of the Elipsa Platform, and shall provide Elipsa prompt notice of any such unauthorized access or use.  Company shall be responsible for the Authorized Users’ compliance with this Agreement.

    3. Restrictions.  Company (and Authorized Users) shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Elipsa Platform available to any third party; (b) create derivative works based on the Elipsa Platform; (c) interfere with or disrupt the integrity or performance of the Elipsa Platform; (d) reverse engineer or attempt to gain unauthorized access to the Elipsa Platform or its related systems or networks; or (e) use the Elipsa Platform to store or transmit infringing, libelous, or otherwise unlawful content or material, or to store or transmit content or material in violation of any rights of any third party.

  2. Term; Termination.

    1. Term.  This Agreement will commence on the Effective Date and will continue thereafter on a free trial basis for the duration of the Trial Period.  The “Trial Period” shall continue until Company saves its first Model using the Elipsa Platform (as further described in Section 3(a) below), at which point the Trial Period shall expire and the Agreement shall continue on a paid basis, with fees payable as set forth in Section 3, for an initial period of one (1) year following the expiration of the Trial Period (the “Initial Term”).  Thereafter the Agreement will automatically renew for successive one (1) year renewal terms (each a “Renewal Term”).  The Trial Period, together with the Initial Term and any Renewal Terms, shall constitute the “Term”.

    2. Termination.  Either Party may terminate this Agreement at any time by providing thirty (30) days prior written notice. 

    3. Survival.  The following Sections shall survive any expiration or termination of this Agreement: Sections 1(c), 2(c), 3, 4, 5, 6 and 7.

  1. Fees.

    1. Trial Period; Transition to Paid Basis.  During the Trial Period, no fees shall be due by Company to Elipsa.  At the time Company initiates steps to save its first Model using the Elipsa Platform, the Company will be presented with a web page containing the commercial terms (including the fees) that will apply going forward with respect to Company’s continued use of the Elipsa Platform (the “Commercial Terms”).  In order to save its Model using the Elipsa Platform, Company must confirm its acceptance of such Commercial Terms by having an Authorized User click “Accept” or otherwise as prompted by the Elipsa Platform, at which point the Trial Period shall end and the Agreement shall continue on a paid basis subject to and in accordance with the Commercial Terms.  If Company does not confirm the Commercial Terms as set forth above, then the Trial Period shall continue provided that Company shall not be able to save any Models. 

    2. Fees.  Following the Trial Period, Company will pay to Elipsa the fees set forth in the Commercial Terms.  The Commercial Terms may include Base Fees, Model Fees, API Transaction Fees, and/or Other Fees, each as described below:

      1. Base Fees.  “Base Fees” are fees that are owed by Company to Elipsa during the Term following the Trial Period, regardless of the amount of Company’s use of the Elipsa Platform or the number of Models saved by Company using the Elipsa Platform.  The Base Fees are payable monthly or annually in advance, as set forth in the Commercial Terms. 

      2. Model Fees.  “Model Fees” are fees that are owed by Company to Elipsa on a per-Model-per month basis, as set forth in the Commercial Terms.  Per-Model pricing may vary depending on the complexity of the Model or other factors, as set forth in the Commercial Terms.  Model Fees are payable monthly in advance, based on the Models saved to the Elipsa Platform as of the first day of each calendar month.  Company may cancel deployment of any Model within the Elipsa Platform at any time, through the cancellation functionality provided in the Elipsa Platform. 

      3. API Transaction Fees.  “API Transaction Fees” are fees that are owed by Company to Elipsa on a per-API transaction basis, as set forth in the Commercial Terms.  API Transaction Fees are paid monthly in arrears, based on the number of API transactions by Company in the prior calendar month.

      4. Other Fees.  “Other Fees” are any other fees that are owed by Company to Elipsa, as set forth in the Commercial Terms.  Payment terms for Other Fees shall be as set forth in the Commercial Terms.

    3. Changes to Commercial Terms.  Elipsa may modify any of the Commercial Terms, including by increasing any or all of the fees, applicable to any Renewal Term by giving Company notice (which notice may be sent by email or through the Elipsa Platform) of such fee increase(s) and/or modification(s) at least sixty (60) days’ prior to the commencement of such Renewal Term. 

    4. Invoicing and Payment Terms.  On or around the first day following the Trial Period, Elipsa will invoice Company for the first partial calendar month on a pro-rata basis.  Thereafter, Elipsa will invoice Company on a monthly basis, on or around the first of each calendar month.  Upon termination of the Agreement, Elipsa will provide a final invoice.  Company shall pay invoices within thirty (30) days of receipt of invoice.  All fees paid are non-refundable, except that if Elipsa terminates the Agreement without cause, Elipsa shall provide to Company a pro-rata refund of any fees paid in advance. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Company will pay all reasonable expenses of collection.  In addition, if any past-due payment has not been received by Elipsa when such payment is due, Elipsa may suspend access to the Elipsa Platform until such payment is made.  All amounts payable by Company to Elipsa hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Company will be solely responsible for payment of any Taxes, except for those taxes based on the income of Elipsa. Company will not withhold any Taxes from any amounts due to Elipsa.  The pricing and other terms in this Agreement are confidential to Elipsa, and Company shall not disclose or make available such information to any third party without Elipsa’s prior written consent.

  1. Proprietary Rights.

    1. Elipsa Platform.  Subject only to the rights expressly granted to Company under this Agreement, as between Elipsa and Company all rights, title and interest in and to the Elipsa Platform will remain with and belong exclusively to Elipsa.  The Elipsa Platform and all information related thereto is Elipsa’s proprietary information, and Company will not disclose or make available such information to any third party or otherwise use or exploit such information for its benefit or the benefit of any third party.  Company hereby grants to Elipsa a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use and incorporate into the Elipsa Platform any suggestions, enhancement requests, recommendations or other feedback provided by Company, including Authorized Users, relating to the Elipsa Platform.

    2. Data.  Company shall be solely responsible for the content, text, data and other materials posted on or through the Elipsa Platform by Authorized Users and/or otherwise provided by Company to Elipsa to enable the provision of the Elipsa Platform to and operation of the Elipsa Platform by Company (collectively, “Company Data”).  As between the Parties, Company shall retain all right, title and interest in and to the Company Data, and Elipsa shall have the right to use such Company Data during the Term in connection with providing the Elipsa Platform to Company.  Company represents and warrants to Elipsa that Company has and will have all rights necessary to provide Elipsa with the Company Data.  Elipsa will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Company Data.  Company hereby grants to Elipsa a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Elipsa’s contractors and service providers) and irrevocable license to copy, anonymize, aggregate, process and create derivative works of Company Data, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and data related to the functionality of Elipsa’s products and services, provided such data cannot be used to identify Company or its users (“Anonymous Data”) and combining or incorporating such Anonymous Data with or into other data and information available, derived or obtained from other customers, licensees, users, or other sources (when so combined or incorporated, referred to as “Aggregate Data”), for improving Elipsa’s existing products and services, developing new Elipsa products and services and for marketing purposes. For the avoidance of doubt, Anonymous Data and Aggregate Data do not constitute Company Data.

  1. Warranties; Disclaimer.

    1. Representations and Warranties.  Each Party represents and warrants to the other Party that such Party has the required rights, power and authority to enter into this Agreement and to grant all rights, authority and licenses granted hereunder.  Elipsa shall use reasonable efforts consistent with prevailing industry standards to maintain the Elipsa Platform in a manner which minimizes errors and interruptions.  The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Elipsa or by third-party providers, or because of other causes beyond Elipsa’s reasonable control, but Elipsa shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

    2. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ELIPSA PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND ELIPSA DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  COMPANY ACKNOWLEDGES THAT ELIPSA DOES NOT WARRANT THAT THE ELIPSA PLATFORM WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES OR THAT THE ELIPSA PLATFORM WILL MEET COMPANY’S REQUIREMENTS.  ELIPSA DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS (INCLUDING THE PREDICTIONS) THAT MAY BE OBTAINED FROM USE OF THE ELIPSA PLATFORM.  COMPANY ACKNOWLEDGES THAT ANY PREDICTIONS PROVIDED BY THE ELIPSA PLATFORM OR ANY MODEL REFLECT SUBJECT ASSESSMENTS, AND COMPANY AGREES THAT ELIPSA WILL HAVE NO LIABILITY TO COMPANY WITH RESPECT TO SUCH PREDICTIONS.   FURTHER, COMPANY AGREES THAT ELIPSA WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR, AND COMPANY AGREES TO INDEMNIFY COMPANY AND HOLD COMPANY HARMLESS WITH RESPECT TO ANY CLAIMS, ACTIONS, PROCEEDINGS, LOSSES AND LIABILITY ARISING FROM, ANY ACTIONS OR INACTIONS OF COMPANY IN RESPONSE TO OR AS A CONSEQUENCE OF, OR OTHERWISE INVOLVING OR RELATING TO, ANY SUCH PREDICTIONS.

  1. Limitation of Liability.  UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR LOST DATA, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.  ELIPSA SHALL NOT BE LIABLE TO COMPANY UNDER THIS AGREEMENT FOR ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE FEES PAID OR PROPERLY PAYABLE BY COMPANY UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM.

  1. Miscellaneous.

    1. Force Majeure. Elipsa shall not be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, pandemic, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

    2. Compliance with Laws.  Without limiting the generality of the foregoing, Company shall not transfer, either directly or indirectly, the Elipsa Platform, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and shall otherwise comply with all other applicable import and export laws, rules and regulations.

    3. No Assignment.  Company may not assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of Elipsa, which consent will not be unreasonably withheld, except Company may assign this Agreement, without the prior written consent of Elipsa, to a corporation or other business entity succeeding to all or substantially all of the assets and business of Company by merger or purchase, provided that such corporation or other business entity assumes, in a writing delivered to Elipsa, all of the terms and conditions of this Agreement.  Any attempt by Company to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.  Elipsa may freely assign or subcontract any or all of its rights or obligations under this Agreement.

    4. Amendment; Waiver.  This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties.  No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver.  Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

    5. Relationship.  Nothing in this Agreement shall be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship.  Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties.

    6. Severability.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the Effective Date.

    7. Governing Law, Jurisdiction.  All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules of conflict of laws.  Each of the Parties hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.

    8. Notices.  All notices under or related to this Agreement will reference this Agreement and will be sent via e-mail.  All notices to Company will be sent to the e-mail address identified by Company in its account profile.  All notices to Elipsa will be sent to info@elipsa.ai, or such other e-mail address designated by Elipsa pursuant to this Section 7(h).

    9. Entire Agreement.  This Agreement (including the Commercial Terms) constitutes the entire agreement between the Parties.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.

    10. U.S. Federal Government End User.  Elipsa provides the Elipsa Platform, including related software and technology, for federal government end use as a "Commercial Item" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Elipsa Platform is provided to the end user with only those rights as provided under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Elipsa to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

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