NOTWITHSTANDING ANY OTHER TERMS ENTERED INTO WITH ELEVATE, BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, YOU (“YOU” OR “YOUR”) AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU ARE ACCEPTING THIS EULA ON BEHALF OF ANOTHER PERSON OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SUCH PERSON OR LEGAL ENTITY TO COMPLY WITH THE OBLIGATIONS UNDER THIS EULA. IF YOU DO NOT AGREE TO THIS EULA, YOU MUST:

• NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE; AND
• PROMPTLY RETURN THE SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED THE SOFTWARE.

1. DEFINITIONS

   Whenever used in this EULA with initial letters capitalized, in addition to terms defined elsewhere in this EULA, the following terms will have the following specified meanings:

   • 1.1. “Software” or “ELM Software” means all Elevate software, including any documentation developed and owned by Elevate.
   • 1.2. “Your Data” means any electronic data You input Elevate inputs on Your behalf for the purpose of using the Software or facilitating Your use of the Software.

2. LICENSE

   • 2.1. Grant of License. Subject to the terms and conditions of this EULA, Elevate hereby grants You, a royalty free, non-exclusive, non-transferable, time-bound license (without the right to sublicense) to use the Software.
   • 2.2. Restrictions on License Grant. You shall use the Software only as contemplated in this EULA. Except as otherwise specifically permitted in this EULA, You will not: (a) copy any features, functions, user interfaces or graphics, or frame or mirror any part or content of the Software; (b) create derivative works based on the Software; (c) reverse engineer the Software; (d) distribute, resell, or permit access to the Software by any third party; (e) use the Software in order to build a competitive product or service; (f) copy any features, functions, user interface or graphics of the Software; (g) permit multiple end users to access the Software using shared login credentials; (h) use the Software other than in accordance with the instructions or documentation provided by Elevate and in compliance with applicable federal, state, and local laws; (i) interfere with the Software or disrupt any other user’s access to the Software; (j) attempt to gain unauthorized access to the Software, or attempt to discover the underlying source code or structure of the Software; (k) publish or share any results of benchmark tests run on the Software to a third party or otherwise without Elevate’s prior written consent.
   • 2.3. Your Obligations. You are solely responsible for (i) all activity occurring under the Your account and its compliance with the terms and conditions of this EULA; (ii) taking all reasonable precautions to keep Your credentials secure; (iii) its compliance with the applicable laws; and (iv) Your Data.
   • 2.4. Audit Rights. Elevate will have the right to audit Your use of the Software to ensure compliance with the terms of this EULA.

3. PROPRIETARY RIGHTS

   • 3.1. Ownership. The Software is licensed for limited use and duration, not sold, by Elevate to You, and nothing in this EULA will be interpreted or construed as a sale or purchase of the Software. Elevate and You acknowledge and agree that, Elevate owns and will continue to own all rights, title, and interest, including all intellectual property rights in and to the Software and all copies thereof. Elevate does not grant any express or implied right to You under Elevate’s patents, copyrights, trademarks, or trade secret information. For the avoidance of doubt, neither the Software nor any improvements, customizations or any other changes or additions thereto during the term of this EULA shall be considered work made for hire and all rights, title and interest thereto shall remain with Elevate.
   • 3.2. Proprietary Notices. You will ensure that all copies or partial copies of the Software will display copyright and other proprietary notices to protect Elevate’s underlying ownership rights in the same manner that Elevate displays such notices in the Software or in any manner reasonably requested by Elevate. You will not, nor will You permit others to, remove, alter, cover, or obscure any such notices from any component of the Software.
   • 3.3. Your Data.
     • (a) Elevate acknowledges that all You Data belongs to You and that Elevate acquires no rights, title or interest thereto.
     • (b) Elevate shall maintain appropriate administrative, physical, organizational, and technical safeguards for protection of the security, confidentiality and integrity of the You Data received by Elevate during the term of this EULA.
     • (c) Elevate shall not disclose You Data except as compelled by law or as expressly permitted in writing by You.
     • (d) Notwithstanding anything to the contrary herein, You hereby agrees that Elevate may use Your Data for the purpose of creating aggregated anonymized versions of such data (“Aggregate Data”). Elevate will be the sole owner of the Aggregate Data and shall be free to use the Aggregate Data for the purposes of continued development of functionality of the Software. Aggregate Data shall not identify You as the source of such data and shall not include personally identifiable information or data specific to any individual identified in Your Data.
     • (e) Notwithstanding anything to the contrary, any usage data or metrics data that Elevate collects as part of exercising its rights under Section 2.4 or otherwise (“Usage Data), is not considered Your Data. Elevate owns all Usage Data.

4. WARRANTY

   • 4.1. Warranty Disclaimer. THE SOFTWARE AND ALL RELATED DOCUMENTATION ARE LICENSED “AS IS”, AND ELEVATE DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORILY QUALITY, NON-INFRINGMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, ELEVATE EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
   • 4.2. Your warranty regarding data. You represents and warrant to Elevate that You either owns all rights or have obtained all licenses, consents or permissions necessary to submit/upload Your Data to the Software, and agree not to submit/upload any data that infringes or misappropriates the intellectual property rights or other proprietary rights of any third parties, including their rights of privacy and publicity.

5. CONFIDENTIALITY

   • 5.1. Non-disclosure. You agree that the Software and the related documentation, including the specific design and structure of individual programs, provided to You by Elevate or on behalf of Elevate constitute confidential proprietary information of Elevate (the “Elevate Confidential Information”). You will not permit any third-parties to use and view the Elevate Confidential Information. You agree not to transfer, copy, disclose, provide or otherwise make available the Elevate Confidential Information in any form to any third party, specifically any competitors or potential competitors of Elevate, without the prior written consent of Elevate. Elevate agrees to hold all information uploaded on the Software by Elevate (on your behalf) or You and all information that is proprietary or confidential to You (the “Your Confidential Information”) as confidential and will take all reasonable steps to prevent the unauthorized access, use or dissemination of Your Confidential Information.
   • 5.2. Remedies. Any breach of the restrictions contained in this Section 5 is a breach of this EULA that may cause irreparable harm to Elevate. You agree that Elevate shall be entitled to seek injunctive relief in addition to all other legal remedies, without the need for a bond.

6. LIMITATION OF LIABILITY

   IN NO EVENT SHALL ELEVATE BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS EULA. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, IN NO EVENT SHALL ELEVATE’S LIABILITY ARISING OUT OF THIS EULA EXCEED US$100.

7. UPGRADES AND UPDATES

   • 7.1. Software Maintenance. Elevate may, from time to time, conduct updates and upgrades which may temporarily affect the use of the Software. To the extent possible, Elevate will use commercially reasonable efforts to plan all maintenance activities on the Software outside the regular business hours of North American Time zones and provide prior notice of all maintenance activities to You in accordance with Section 7.2.
   • 7.2. Software Downtime. Elevate will use commercially reasonable efforts to make the Software available to You 24 hours a day, 7 days a week except for (i) planned downtime (of which Elevate shall give at least 8 hours electronic notice and which Elevate shall schedule to the extent practicable during the weekend hours between 9:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond Elevate’s reasonable control, including but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike, other labor problem, failure or delay caused by internet service provider or third party application, or denial of service attack.
   • 7.3. Unplanned Downtime. Elevate shall not be held responsible for any downtime or loss of data as a result of (i) communication networks which are not owned or under direct control of Elevate, (ii) caused by the occurrence of an event beyond Elevate’s reasonable control. These events include, but are not limited to, natural disasters and severe weather conditions, war, sabotage, riots, accidents, fires and explosions.

8. FEEDBACK

   You may provide to Elevate reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports and any test results, with respect to the working of the Software (collectively, the “Feedback”). Elevate shall analyze the Feedback and may in its sole discretion and without any liability or compensation to You implement the Feedback for enhancing the Software performance; however, in no event shall Elevate be obligated to implement the Feedback into the Software.

9. GOVERNING LAW

   This EULA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable choice-of-law principles. The parties hereto consent to the jurisdiction of the courts of Delaware with respect to any legal proceedings that may result from a dispute as to the interpretation or breach of any of the terms and conditions of this EULA.

10. EXPORT RESTRICTIONS

    You acknowledge that the Software is of U.S. origin and agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other countries.