LICENSEE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WHETHER LICENSEE ACCESSES OR OBTAINS GRAVITYMARK SOFTWARE DIRECTLY FROM HTTPS://GRAVITYMARK.TELLUSIM.COM/, OR THROUGH ANY OTHER SOURCE. BY USING, INSTALLING, AND/OR OPERATING GRAVITYMARK SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. LICENSEE WILL HAVE THE OPPORTUNITY TO ACCEPT THIS OFFER OF AGREEMENT THROUGH A CLICK-THROUGH PROCEDURE. IF LICENSEE DOES NOT WISH TO ACCEPT THE TERMS OF THIS AGREEMENT AND/OR TO DECLINE THIS AGREEMENT, LICENSEE SHALL NOT USE, INSTALL, OR OPERATE THE GRAVITYMARK SOFTWARE. IF LICENSEE CHOOSES TO ACCEPT THE TERMS OF THIS AGREEMENT, LICENSEE MAY DO SO BY CHECKING “I AGREE” USING THE DESIGNATED CHECK BOX, LICENSEE’S CLICK OF THE “I AGREE” BUTTON IS A SYMBOL OF LICENSEE’S SIGNATURE AND BY CLICKING ON THE “I AGREE” BUTTON, LICENSEE CONSENTS TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT AND AGREES THAT THIS AGREEMENT IS ENFORCEABLE AGAINST LICENSEE PURSUANT TO ITS TERMS TO THE SAME EXTENT AS ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN LICENSEE SHOULD NOT OPERATE THE GRAVITYMARK SOFTWARE AND LICENSEE WILL NOT BE ALLOWED TO USE, INSTALL, OR OPERATE THE GRAVITYMARK SOFTWARE.

1. Definitions. Each of the expressions indicated below will have, in this Agreement, the meaning assigned to it, namely:

  1.1. “Affiliate” shall mean, with respect to a given Person, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the given Person; “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).

  1.2. “Confidential Information” shall mean any information, GravityMark Software, document or other material of any nature relating to or concerning Tellusim and/or its Affiliates, that is provided or made available to receiving Party either before or after the Effective Date, directly or indirectly in any form whatsoever, including in writing, orally, and machine readable, and including, but not be limited to, any correspondence, memoranda, notes, e-mails, formulas, samples, equipment, compilations, blueprints, business information, technical information, know-how, information regarding patents, patent applications, software, computer object code or source code, algorithms, high-level structures, graphic user interfaces, ongoing research and development, business plans, business or marketing strategies or plans, GravityMark Software or GravityMark Software development strategies or plans, information concerning current and future GravityMark Software and services, customers, suppliers and markets, price lists and pricing information, financial statements and forecasts, computerized or other magnetically filed data, methods and techniques, manufacturing processes, developments, inventions, designs, drawings, engineering specifications, hardware configuration information, trade secrets, financial information of Tellusim and/or its Affiliates and any other business records and information, including without limitation the information about this Agreement, the use or disclosure of which might reasonably be construed to be contrary to the interests of Tellusim, including information of third parties subject to confidentiality obligations, provided, however, that Confidential Information shall not include information which: (i) is already in the possession of Licensee before receipt from Tellusim; (ii) is or becomes rightfully in the public domain without fault of Licensee; (iii) is received from a third party who or which is not under any obligation of confidentiality or restriction on use or disclosure concerning such information, or (iv) is disclosed under operation of law to the public or to a third party without a duty of confidentiality.

  1.3. “Documentation” shall mean user manuals, training materials, GravityMark Software descriptions and specifications, technical manuals, supporting materials, maintenance know how, text and graphic elements of all user interfaces and any modifications or upgrades of the foregoing, developed for use in connection with the GravityMark Software, made available by Tellusim from time to time.

  1.4. “Effective Date” shall mean the date Tellusim approves licensee’s offer of agreement and licenses the GravityMark Software hereunder to Licensee.

  1.5. “GravityMark Software” shall mean the GravityMark GPU benchmark software available at https://gravitymark.tellusim.com/ and licensed hereunder, and all related Documentation included therewith in any form and on any media and all fixes, Updates, modifications, enhancements and new releases of the foregoing and those related materials used in connection therewith.

  1.6. “Intellectual Property Rights” means all rights in, arising out of, or associated with intellectual property in any jurisdiction, including without limitation all technology and intellectual property, regardless of form, including without limitation, published and unpublished works of authorship, audiovisual works, collective works, computer programs, compilations, databases, derivative works, literary works, maskworks, and sound recordings, including without limitation rights in maskworks and databases (“Copyrights”); inventions and discoveries, including without limitation articles of manufacture, business methods, compositions of matter, improvements, machines, methods, and processes and new uses for any of the preceding items (“Inventions”); words, names, symbols, devices, designs, and other designations, and combinations of the preceding items, used to identify or distinguish a business, good, group, product, or service or to indicate a form of certification, including without limitation logos, product designs, and product features (“Trademarks”); rights in, arising out of, or associated with Confidential Information (“Trade Secret Rights”); rights in, arising out of, or associated with Inventions (“Patent Rights”); rights in, arising out of, or associated with a person’s name, voice, signature, photograph, or likeness, including without limitation rights of personality, privacy, and publicity (“Personality Rights”); rights of attribution and integrity and other moral rights of an author (“Moral Rights”); and rights in, arising out of, or associated with domain names (“Domain Name Rights”) and information that is not generally known or readily ascertainable through proper means, whether tangible or intangible, including without limitation algorithms, customer lists, ideas, designs, formulas, know-how, methods, processes, programs, prototypes, systems, and techniques.

  1.7. “Operate” shall mean accessing, downloading, storing, loading, installing, executing, displaying, and copying the Documentation and GravityMark Software into the memory of a computer or otherwise benefiting from using the functionality of the GravityMark Software in accordance with the Documentation.

  1.8. “Person” means any individual, partnership, limited liability licensee, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.

  1.9. “Tellusim” shall mean Tellusim Technologies Inc., a Delaware corporation.

  1.10. “Tellusim Marks” shall mean all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and other distinct brand elements that appear from time to time in properties, GravityMark Software, ventures and services of Tellusim or any of its Affiliates, together with any modifications to the foregoing made by such parties during the Term of this Agreement.

  1.11. “Updates” shall mean new versions of the GravityMark Software provided by Tellusim and to be implemented by Licensee.

2. License and Appointment of Licensee.

  2.1. Single License Grant for GravityMark Software. Tellusim grants to Licensee the following rights and privileges (the “License”) and Licensee hereby accepts such License: a worldwide, limited, non-assignable, non-exclusive, and non-transferable license to Operate the GravityMark Software pursuant to this Agreement, subject to any restrictions imposed by all other applicable documentation.

  2.2. No Production Environment; Evaluation Purposes; Terms and Conditions of Commercial License. Except as set forth in the Commercial License Addendum terms attached hereto and made a part hereof, the GravityMark Software shall not be used in a production environment. GravityMark Software must be used ONLY for evaluation and testing purposes and NOT for any commercial purpose, including, but not limited to pre-sale testing and demonstration purposes.

  2.3. No Critical Data. Licensee must not use GravityMark Software to operate with important and/or critical data.

  2.4. No Updates; Support. The License does not entitle Licensee to any Updates and nothing herein shall obligate Tellusim to provide Updates for the GravityMark Software. Tellusim provides email support at support@gravitymark.com. Support is provided “AS IS” WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, AVAILABILITY, ACCEPTABLE QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  2.5. Attribution Notices. Licensee may Operate the GravityMark Software, pursuant to the terms and conditions hereto, provided that all the GravityMark Software and associated output data shall (i) retain all electronic prominent copyright notices referring to Tellusim as originally placed by Tellusim (e.g. “Copyright © 2021, Tellusim Software, Inc. All rights reserved”) and contain “Powered by Tellusim: Tellusim Software, Inc.” or similar notices, and (ii) Licensee shall not mask, frame, overlay, impair or otherwise materially alter, affect or impair such notices.

  2.6. Third Party Software and/or Third-Party Hardware. In order to Operate the GravityMark Software, Licensee may require additional third-party software or hardware which is not licensed hereunder and not under Tellusim’s control and may be subject to third party terms and fees. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant Licensee any rights or licenses with regard to such third-party software and/or third-party hardware or to entitle Licensee to use such law-party software and/or third-party hardware and Licensee shall be solely responsible for obtaining and maintaining such third-party licenses. All third-party software and/or third-party hardware licensors retain all right, title, and interest in and to such third-party software and/or third-party hardware.

3. Licensee’s Obligations.

  3.1. Tellusim Intellectual Property. Licensee agrees that all right, title, and interest in and to GravityMark Software, including Updates, modifications, developments, improvements, enhancements, and all Intellectual Property Rights are, and always shall remain, the sole and exclusive property of Tellusim. Except as otherwise specifically provided in this Agreement, Licensee does not acquire any right to use, disclose, copy, reproduce, publish, or distribute the GravityMark Software or Tellusim Marks and the order of, delivery to, or payment for GravityMark Software does not convey any other license, expressly or by implication, under any Intellectual Property Rights owned by Tellusim, including without limitation, the right to produce, modify or enhance any GravityMark Software.

  3.2. Sublicense; Assignment. Licensee agrees not to sell, loan, rent, lease, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the GravityMark Software, any copy or use thereof, in whole or in part, without Tellusim’s prior written consent. This Agreement and the rights and duties granted hereunder, including without limitation any Licenses granted hereunder, may not be assigned, in whole or in part, by Licensee without the prior written consent of the Tellusim. Tellusim shall have the right to assign this Agreement without Licensee’s prior consent.

  3.3. Confidential Information. Licensee shall keep Confidential Information of Tellusim in strict confidence and shall not make use of Confidential Information for any purpose other than in connection with this Agreement and to implement reasonable security measures to protect such Confidential Information. Licensee shall notify Tellusim if disclosure of Confidential Information is necessary to comply with the requirements of any law, government order, regulation, or legal process prior to such disclosure and Licensee, at Tellusim’s request, shall use best efforts to seek an appropriate protective order in connection with such legal process and, if unsuccessful, to use best efforts to assure that confidential treatment will be accorded to the disclosed Confidential Information.

  3.4. No Disparagement. Licensee agrees that he/she/it will not, directly or indirectly, individually or in concert with others, engage in any conduct or make any statement that is likely to have the effect of undermining or disparaging the GravityMark Software, the reputation of Tellusim, or its goodwill, products, or business opportunities or that is likely to have the effect of undermining or disparaging the reputation of any officer, director, agent, representative, or employee, past or present, of Tellusim.

  3.5. System Requirements; Load Risk. The minimum system requirements necessary to Operate the GravityMark Software are located at https://gravitymark.tellusim.com/. Licensee hereby acknowledges and agrees that Licensee shall bear any and all risk of system overload damage caused by Operating GravityMark Software, including but not limited to loss of data. It is Licensee’s sole responsibility to Operate the GravityMark Software according to specifications and to make regular backups of its data.

  3.6. Additional Obligations. Licensee shall not: (a) modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer any of the GravityMark Software, or any part thereof, or to attempt to derive the source code or the underlying ideas, algorithms, structure, or organization from the GravityMark Software, including through the use of a “clean room” as that term is understood in the software industry; notwithstanding the foregoing, decompiling software is permitted to the extent the laws of the Licensee’s jurisdiction give Licensee the explicit and non-waivable right to do so to obtain information necessary to render the GravityMark Software interoperable with other software; provided, however, that Licensee must first request such information from Tellusim and Tellusim may, in its discretion, either provide such information to Licensee (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such Operation of the GravityMark Software to ensure that Tellusim’s proprietary rights in the GravityMark Software are protected. Except for the modification explicitly permitted hereunder, Licensee may not modify or create derivative works based upon the GravityMark Software in whole or in part; (b) reproduce or copy any GravityMark Software except as otherwise expressly provided herein or adapt in any way, modify, insert, delete, replace, change, prepare, or create derivative works or otherwise alter any files in the GravityMark Software (except as such files may be modified as an incidental effect of the normal installation process); (c) use any portion of the GravityMark Software as a stand-alone application or with applications other than the GravityMark Software; or (d) attempt to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the GravityMark Software, including without limitation any such mechanism used to restrict or control the functionality of the GravityMark Software, without prior written approval from Tellusim which can be withheld at Tellusim’s sole discretion.

4. Representations, Warranties, and Covenants. Licensee represents, warrants, and covenants that:

  4.1 Licensee will neither Operate or Use the GravityMark Software for the purpose of circumventing a technological measure nor will it Operate or Use the GravityMark Software in conjunction with a third-party application for the purpose of circumventing a technological measure that effectively protects a right of a copyright owner in a copyrighted work or a portion thereof;

  4.2 the execution, delivery and performance by Licensee of this Agreement do not and shall not violate any law (including, without limitation, privacy, export control, obscenity and anti-spam laws), violate any charter document of Licensee, violate any agreement or order to which Licensee is a party or by which Licensee or its assets are bound, or require any consent from any Person; and

  4.3 Licensee and/or his, her, or its representatives, if any, are not and will not be at any time during the Term be: (i) located in a country embargoed by the United States; (ii) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (iii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56 or any Executive Order of the President issued pursuant to such statutes; (iv) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons”; (v) named on the U.S. Treasury Department’s list of Specially Designated Nationals (SDN); or (vi) named on the United States Commerce Department’s Table of Deny Orders.

5. Miscellaneous.

  5.1. Personal Information. In the event that Licensee provides the personal information of any individual to Tellusim, such information shall be processed according to Tellusim’s then current privacy policy.

  5.2. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the GravityMark Software in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The federal and state courts located in Wilmington, DE shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.

  5.3. Remedies. If Licensee breaches, or threatens to commit a breach of any of the representations, warranties, and/or covenants set forth herein, Tellusim will be entitled, in addition to any other rights Tellusim may enjoy, to obtain injunctive or other equitable relief by any court of competent jurisdiction to restrain any actual or threatened breach or otherwise to specifically enforce the provisions of this Agreement.

  5.4. No Reliance. Licensee may not rely, or base purchasing decisions, on GravityMark Software being or becoming generally available.

6. Disclaimer; Limitation of Liability; Indemnity.

  6.1. Licensee’s Use or Operation of the GravityMark Software is At Your Own Risk, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, GRAVITYMARK SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, AVAILABILITY, ACCEPTABLE QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  6.2. LIMITATION OF LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. LICENSEE ASSUMES THE ENTIRE COST OF ANY DAMAGE RESULTING FROM LICENSEE’S USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TELLUSIM OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR FRAUD, DEATH OR PERSONAL INJURY OR OTHER DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.

  6.3. Indemnity. Licensee shall indemnify, protect, defend and hold harmless Tellusim, its Affiliates, and its agents, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising out of, involving, or in connection with this Agreement, the GravityMark Software, and Licensee’s Use or Operation of the GravityMark Software or authorization of another to do so. If any action or proceeding is brought against Tellusim by reason of any of the foregoing matters, Licensee shall upon notice defend the same at Licensee’s expense by counsel reasonably satisfactory to Tellusim and Tellusim shall cooperate with Licensee in such defense at Tellusim’s sole discretion.

7. Modification and Termination. Tellusim may modify or discontinue Licensee’s use or Operation of the GravityMark Software at any time and for any reason, or for no reason, at its sole discretion. Tellusim may terminate this Agreement, or any portion hereof, at any time and for any reason, or no reason. Notwithstanding the foregoing, the Agreement and License shall automatically terminate in the event of Licensee’s breach of any terms and conditions hereof. In the event of termination and/or expiration of this Agreement, Licensee will no longer be authorized to Operate or use the GravityMark Software in any way.