METIS MACHINE TERMS OF USE AGREEMENT

Last Updated: 11/26/2018

BY CLICKING THE “ACCEPT” BUTTON OR USING THE METIS MACHINE SERVICES IDENTIFIED IN THE ORDER (EACH, AN “ORDER FORM”) THAT REFERENCE THIS TERMS OF USE AGREEMENT (“AGREEMENT”), THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“CUSTOMER”) IS AGREEING TO BE BOUND BY AND IS BECOMES A PARTY TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.  THE COMPANY IS “METIS MACHINE LLC WITH A PLACE OF BUSINESS AT 103 W MAIN ST, CHARLOTTESVILLE, VA 22902”.

TERMS AND CONDITIONS

1.  SAAS SERVICES AND SUPPORT

1.1  Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer access to the Software as a Service solution more fully described in an Order Form signed by the parties (the “Services”) in accordance with the service level agreement. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account.  Company reserves the right to refuse registration of, or cancel usernames it deems inappropriate.

1.2  Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice.

1.3  Unless otherwise stated on the services or in connection with any API made available to Customer by Company (“Company API”), Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable license during the term of the applicable Order Form, to access and use the Company API for the sole purpose of uploading Customer Data and downloading Outputs from the Services.

2.  RESTRICTIONS AND RESPONSIBILITIES

2.1  Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure,  know-how or algorithms relevant to the Services, Company API or any software, documentation or data owned by Company related to the Services (collectively, “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or expressly authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels; intentionally upload, transmit, post, email or otherwise make available on the Services, any credit card numbers, any personally identifiable information, or any other content or material that (A) is false, inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, discriminatory, invasive of another’s privacy, libelous and/or otherwise objectionable; (B) infringes any third party’s intellectual property; or (C) contains viruses, worms, Trojan horses, back doors or trap doors, corrupted files, or any other similar software or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

2.2  Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations.  Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that directly arises from an alleged violation of the foregoing or otherwise from Customer’s gross negligence or willful misconduct.

3.  TASKS AND CUSTOMER DATA

3.1  Customer shall own all right, title and interest in and to the data uploaded by Customer to the Services (“Customer Data”).  Customer shall own Customer- specific sets of code that execute on Company Software, including Customer -specific models, derivative data sets, and workflows (“Tasks”), which Customer creates in the course of using the Services. To the extent a Task is derived from a pre-existing or Company-developed Task,  (a “Template”), Company retains exclusive ownership over such Template as Company IP.

3.2  Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) , and  Company will be able to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes  in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business .  For the avoidance of doubt, Company will not have any rights to use or disclose Customer Data, except as permitted under this Agreement.

3.3  Company shall own all right, title, and interest in and to (a) the Services and the Software, including without limitation, all inventions, know-how, methodologies, algorithms, Templates, Tasks (excluding Customer-specific Tasks created by Customer as described in Section 3.2) and data models, (b) all improvements, enhancements or modifications thereto, (c) all software, applications, inventions or other technology developed by Company in connection with the Services, (d) all de-identified, anonymized, or aggregate data that is based on or derived from the Customer Data whether or not provided to Customer as part of the Services, and (e) all other intellectual property rights contained in or derived from the any of the foregoing (the “Company IP”) and Customer will have no right or license to the Company IP except the right of access to the Services expressly granted in Section 1 of this Agreement.

3.4  Nothing in this Agreement will prevent the Company or its employees from using any general skills and knowledge gained while providing Services pursuant to this Agreement.

4.  PAYMENT OF FEES

4.1. Customer will pay Company the then applicable fees described in the Order Form (the “Fees”). If Customer’s use of the Services exceeds the service capacity, if any, set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner described in this Agreement.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.

4.2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date 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 Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5.  TERM AND TERMINATION

5.1. Subject to earlier termination as provided below, this Agreement is for the Pilot Period (identified on the Order Form) and initial service term as specified in the Order Form, and shall be automatically renewed for thirty (30) day periods (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term or as otherwise specified in the Order Form.

5.2. In addition to any other remedies it may have, either party may also suspend the Services or terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, and thereafter Company shall delete all stored Customer Data. 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.

6.  WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. COMPANY PROVIES NO WARRANTIES WITH RESPECT TO THE SUPPLIED EQUIPMENT EXCEPT ANY MANUFACTURER’S WARRANTY THAT COMPANY MAY PASS THROUGH TO CUSTOMER.EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.  LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER 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 COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIMITATIONS ON DAMAGES SET FORTH IN THIS PARAGRAPH DO NOT APPLY TO CLAIMS ARISING FROM CUSTOMER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

8.  WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION

EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL A BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF RELATING TO THIS AGREEMENT, (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

Any action or proceeding brought by a Party arising out of this Agreement shall be brought solely in a court of competent jurisdiction located in Orange County, Florida, or in the United States District Court for the Middle District of Florida and each Party hereby submits and agrees to such personal jurisdiction for such purposes. Each Party hereby agrees that it shall submit to the personal jurisdiction of such court and shall not attempt to have such action dismissed, or abated or transferred on the ground of forum non conveniens.

9.  MISCELLANEOUS

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.  This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is 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.  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 Company 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.  This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions.