IMPORTANT: THE PRODUCT (AS DEFINED BELOW) IS STILL UNDER DEVELOPMENT AND TESTING. ELIXXIR HAS NOT MADE THE PRODUCT GENERALLY AVAILABLE TO THE PUBLIC. YOU MAY NOT PLACE OR USE THE PRODUCT IN A PRODUCTION ENVIRONMENT.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY (“YOU”, “YOUR”, OR “PARTICIPANT”) AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT ACCEPT THIS AGREEMENT AND PARTICIPANT MAY NOT USE THE PRODUCT.

THIS BETA AGREEMENT (THIS “AGREEMENT”) IS BETWEEN PARTICIPANT AND PRIVATEGRITY CORPORATION (“ELIXXIR”).

BY USING THE PRODUCT OR PARTICIPATING IN THE BETA TEST AFTER NOTICE OF THIS AGREEMENT OR BY CLICKING OR CHECKING A BOX INDICATING YOUR ACCEPTANCE OF OR ASSENT TO THE TERMS OF THIS AGREEMENT (THE FIRST DATE ON WHICH ANY SUCH ACTION OCCURS, THE “EFFECTIVE DATE”), PARTICIPANT AGREES TO ALL OF THE TERMS OF THIS AGREEMENT.

  1. Scope of Agreement.  Participant is being granted rights under this Agreement for the purpose of testing and providing input and other Feedback to Elixxir regarding one or more of Elixxir’s proprietary, non-commercially available hosted software applications, application platform interfaces, services, features and/or functionalities in connection with the BetaNet as more fully described in the Beta Testing Application Form and related pages located at https://elixxir.io/betanet   (the “ Beta Product(s) ”). This Agreement covers all Beta Products made available to Participant by Elixxir, including, without limitation, any Beta Products specifically identified by Elixxir as being in “Beta” or any similar stage of development. Elixxir retains sole and absolute discretion as to what, if any, Beta Products will be made available to Participant during the Term. While Participant is not required to utilize or enable any Beta Products, if Participant elects to do so, then Participant’s use of and access to any such Beta Products shall be subject to the terms of this Agreement.

  1. Payment; Fees.  Elixxir reserves the right to start charging or revise fee amounts at any time, at its sole discretion after the Beta Products are made publicly available and incorporated into an Elixxir service.

  1. Limited Use Rights.  For the term of the Agreement, Elixxir grants to Participant a limited, non-transferable, non-exclusive, revocable right to access and use the Beta Product(s) to test its functionality and provide Feedback to Elixxir. Elixxir hosts and retains physical control over the Beta Product(s) and only makes the Beta Product(s) available for access and use by Participant over the Internet through a Web-browser or mobile device. Nothing in this Agreement obligates Elixxir to deliver or make available any copies of computer programs or code from the Beta Product(s) to Participant, whether in object code or source code form. Elixxir reserves the right, in its sole discretion, to revoke access and use of the Beta Products at any time. Further, Elixxir reserves the right to (i) monitor or measure use of the Beta Product(s); (ii) validate certain features or functionality of the Beta Product(s); and (iii) to provide services or support necessary to maintain the Beta Product(s).

  1. Use Restrictions.  Participant may not rent, lease, distribute, or resell the Beta Product(s), or use the Beta Product(s) as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Beta Product(s).

  1. Feedback.  Upon reasonable request by Elixxir, Participant agrees to provide suggestions, enhancement requests, and recommendations (individually and collectively, “ Feedback ”) regarding the Beta Product(s). Feedback shall include informing Elixxir about the performance, ease of use, features that may be missing, and any bugs encountered during the use of the Beta Product(s). Elixxir may contact Participant and Participant agrees to make available a reasonable amount of time to discuss the Beta Product(s) with Elixxir if so requested. Elixxir may without restriction or fee use, modify and incorporate this Feedback into the Beta Product(s) and other Elixxir products and/or services without any restriction and without any payment.

  1. Intellectual Property.  The parties acknowledge that this Agreement does not transfer any right, title or interest in any intellectual property right to the other. Elixxir maintains all rights, title and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “ Intellectual Property Rights ”). The limited rights granted to Participant to access and use the Beta Product(s) under this Agreement do not convey any additional rights in the Beta Product(s), or in or to any Intellectual Property Rights associated therewith. Subject only to the limited rights to access and use the Beta Product(s) as expressly provided herein, all rights, title and interest in and to the Beta Product(s) and all hardware, software and other components of or used to provide the Beta Product(s), including all related Intellectual Property Rights, will remain with and belong exclusively to Elixxir.

  1. Term of Agreement and Renewal.  This Agreement shall commence upon the Beta Testing Start Date and shall expire on the Beta Testing End Date, each as set forth on the Beta Testing Announcement Page located at https://elixxir.io/ betanet-announcement  (the “ Initial Term ”), provided, however , that the Company may elect to extend the Beta Testing End Date in its sole discretion (the “ Additional Term ” and together with the Initial Term, the “ Term ”). If the Company elects to extend the Beta Testing End Date, the terms of this Agreement shall continue to apply. If you would like to cease participation in the Beta after the expiration of the Initial Term, you may terminate this Agreement in accordance with Section 8 below.

  1. Termination and Expiration.  Either party may terminate this Agreement at any time, for any or no reason, and at either party’s convenience by providing written notice to the other. Upon termination of this Agreement, Participant will notify its users, if applicable, that their access to the Beta Product(s) has terminated, and Elixxir may withhold, remove or discard any content, data, or other information that Participant’s Users post or upload into Elixxir’s system while using the Beta Product(s). Following termination or expiration of this Agreement, Elixxir is not obligated to store, maintain or provide a copy of any content, data or other information that Participant or its Users made available or provided when using the Beta Product(s). If not earlier terminated, Participant’s obligations under this Agreement shall terminate upon termination of this Agreement; provided that the foregoing shall not limit Elixxir’s rights pursuant to Section 5 as related to any Feedback provided before or after such termination. Sections 2, 5, 6, 11, and 13 - 17, and all obligations thereunder, shall survive any termination of this Agreement.

  1. Confidential Information.  Participant acknowledges and agrees that participation in the Beta testing under this Agreement will result in Elixxir disclosing certain confidential, proprietary and/or trade secret information related to the Beta Products and/or Elixxir (the “ Confidential Information ”). Such Confidential Information includes, without limitation, the features and functionality  of the Beta Product(s), and any know how, trade secrets, computer programs, source code, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information, business plans or reports made available to Participant. Participant agrees that it will not, without the express prior written consent of Elixxir, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (a) is or becomes generally available to the public through any means other than as a result of any act or omission by Participant; (b) is rightfully received by Participant from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (c) is independently developed by Participant without any reliance on any Confidential Information. At the termination of this Agreement or at any time by request of Elixxir, Participant will return all Confidential Information in its possession to Elixxir and further agrees that it will not duplicate, translate, modify, copy, print, disassemble, decompile or otherwise tamper with the Beta Product(s) or any Confidential Information.

  1. Third Party Tool Integrations.  If applicable, one or more Beta Products may integrate with third party services. Participant hereby consents to the sharing of the information in the Beta Products with these third party services and certifies that it has any and all required consents for doing so.

  1. Disclaimer of Warranties.  THE BETA PRODUCT(S) ARE PROVIDED “AS IS”. ELIXXIR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE BETA PRODUCT(S), INCLUDING ANY REPRESENTATION THAT THE SERVICES THEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ELIXXIR DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RESPECT OF THE BETA PRODUCT(S). FOR THE AVOIDANCE OF DOUBT, ALL BETA PRODUCT(S) ARE PRELEASE, ARE EXPECTED TO CONTAIN DEFECTS WHICH MAY BE MATERIAL, AND ARE NOT EXPECTED TO OPERATE AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING. BETA PRODUCT(S) MAY NOT OPERATE ACCURATELY AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO PUBLIC AVAILABILITY OR WITHDRAWN AT ANY TIME. ACCORDINGLY, ACCESS TO AND USE OF THE BETA PRODUCT(S) IS ENTIRELY AT PARTICIPANT’S OWN RISK. IN NO EVENT SHALL ELIXXIR BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA PRODUCT(S), EVEN IF ELIXXIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF ANY BETA PRODUCT.

  1. Indemnity.  Participant agrees to indemnify and hold Elixxir, its officers, directors and employees harmless from any losses (including attorneys’ fees) that result from any third party claims related to Participant’s (or its Users) access, use or misuse of the Beta Product(s), or any act or omission by Participant or its users in violation of this Agreement.

  1. Dispute Resolution, Governing Law and Venue.  The parties will attempt to resolve any dispute related to this Agreement through good faith, informal negotiation. If initial negotiation does not resolve the dispute, the parties will select a mutually agreed mediator in a mutually agreed location to attempt to resolve the dispute. If mediation fails to resolve the dispute, either party may file an action in a federal court in the Southern District of California only and each party irrevocably submits to the jurisdiction and venue of the applicable courts. The laws of the State of California govern this Agreement. Any breach of confidentiality obligations in this Agreement, or any unauthorized use of the services or a party’s intellectual property by the other, may cause irreparable harm.

  1. Compliance with Laws and Legal Advice.  Each party must comply with all laws, rule or regulations applicable to such party’s activities in relation to this Agreement, including export control laws of the United States which are applicable to the application and which may prohibit use of the application in certain sanctioned or embargoed countries. Elixxir will not provide Participant with any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which Participant uses the Beta Product(s) (“ Laws ”). The parties acknowledge and agree that not all features, functions and capabilities of the Beta Product(s) may be used in all jurisdictions and Participant recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local Laws, and in certain jurisdictions consents may need to be obtained from individuals submitting data via the Beta Product(s) as to the intended purpose, storage, distribution, access and use of the data submitted (“ Local Use Decisions ”). Participant is responsible for Local Use Decisions and Elixxir disclaims all liability for Local Use Decisions.

  1. Miscellaneous.  This Agreement does not create a partnership, agency relationship, or joint venture between the parties. Any assignment of this Agreement by Participant in whole or in part without Elixxir’s prior written consent will be null and void, except an assignment to a successor that is not a competitor of Elixxir’s made in connection with a merger or sale of all or substantially all of Participant’s assets or stock or to an Affiliate. If this Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties’ intention and the remaining provisions will not be affected. Failure of Elixxir to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved. This Agreement includes any schedules and exhibits attached hereto. Such documents encompass the entire agreement between Participant and Elixxir with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or modified by duly executed written instrument. All notices to be provided by Elixxir to Participant under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“ Courier ”) or US mail to the contact mailing address provided by Participant on any form; or (b) an electronic mail to the electronic mail address provided by Participant. Participant must give notice to Elixxir in writing by Courier, US Mail, or email to the following address: Elixxir, Inc., Attn: Legal Department, 101 Indian Blvd Claremont, California 91711 USA, [email protected] . All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above. You may not assign this Agreement without the prior written consent of Elixxir. Subject to the foregoing, the Agreement shall be binding upon the parties and their respective administrators, successors and assigns.

Updated 2019/03/28