Client Portal Terms of Use

These Terms of Use ("Terms") form a legally binding agreement between you ("Customer", "you", or "your") and Levata US, LLC, on behalf of itself and its Affiliates ("Levata", "we", or "us") concerning your access to our customer-specific website that provides data analytics regarding device performance and other customer service features (the "Portal"). If and to the extent there exists any other agreement between you and Levata, these Terms will control solely with respect to the Portal. Customer and Levata may singularly be identified herein as "Party" and collectively as "Parties."

WHEN YOU PROVIDE YOUR CONSENT BY CLICKING THE "ACCEPT" BUTTON, OR OTHERWISE THROUGH THE ACCOUNT REGISTRATION PROCESS WHICH REFERENCES THESE TERMS DURING THE PROCESS OF CONNECTING TO AND USING THE PORTAL, YOU ARE AGREEING TO BE BOUND BY THESE TERMS TO THE SAME EXTENT AS IF A PAPER COPY OF THESE TERMS HAD BEEN MANUALLY EXECUTED, AND YOU UNDERSTAND AND INTEND TO ENTER INTO THESE TERMS ELECTRONICALLY. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND CUSTOMER TO ITS TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT GIVE YOUR CONSENT, AND YOU ARE NOT PERMITTED TO ACCESS OR USE THE PORTAL.

1. Definitions

For purposes of these Terms, the defined terms used herein will have the meaning set forth as follows:

1.1. "Affiliates" means those persons, entities, or businesses that are controlled by, controlling, or under common control with a party, as of the Effective Date or at any time thereafter during the Term.

1.2. "Agent(s)" means: (i) with respect to Levata means any of Levata's or its Affiliates' employees, subcontractors, staff, licensors, providers, or other third parties or individuals that provide or may provide Portal or other services to or on Levata's behalf pursuant to these Terms; and (ii) with respect to Customer means any of Customer's employees, subcontractors, staff, licensors, providers, or Authorized Users, and other third parties or individuals that access or use the Portal.

1.3. "Applicable Law" means all applicable state, federal, international, and/or local laws, statutes, rules, and regulations.

1.1. "Authorized User(s)" means any employee that Customer permits to use or access the Portal provided that such employee has a need to use the Portal in the scope and course of their employment with Customer.

1.4. "Levata Materials" means (i) the Portal; (ii) Prior Inventions; (iii) all Intellectual Property developed and/or owned by Levata, its Agents, or third parties on or after the Effective Date of these Terms, including, without limitation, all Marks; (iv) research, benchmarking methodologies, tools, and other confidential materials relating to the Portal (including, without limitation, any such materials based on aggregated and de-identified Customer Data); and (v) any derivative works of any of the foregoing.

1.5. "Confidential Information" means any information a Party or its Affiliates receives or has access to in connection with these Terms, whether or not disclosed by a Party or its Affiliates, and whether or not labeled as being confidential, which is not publicly known, including, but not limited to: software, financial information, schematics, requirements, configuration information, research papers, projections, routines, processes, formulas, trade secrets, innovations, inventions, discoveries, improvements, research or development and test results, specifications, know-how, formats, plans, sketches, drawings, models, customer lists, customer and supplier identities and characteristics, agreements, marketing knowledge and information, sales figures, pricing information, marketing plans and business plans, organizational structure and operations, strategies, forecasts, analyses, financial information, budgets, system flow charts, process flow diagrams, data dictionaries, data models, entity relationship diagrams, object models, screen layouts, and any other information of a Party or its Affiliates stored or created on any media or in any form and received, processed, stored, archived or maintained by a Party or its Affiliates. "Confidential Information" will not include information that a Party can demonstrate through written documentation: (i) was publicly known through no wrongful act of a Party; (ii) was in a Party's lawful possession prior to disclosure under these Terms and was not received as a breach of any confidentiality obligations; (iii) was independently developed by a Party outside the scope of these Terms; or (iv) was lawfully obtained from a third party without confidentiality restrictions.

1.6. "Customer Data" means the data or other information supplied by Customer to be used in connection with the Portal.

1.7. "Damages" has the meaning set forth in Section 11.1.

1.8. "Documentation" means any documentation with respect to the Portal that Levata makes available to Customer from time to time.

1.9. "Feedback" shall have the meaning set forth in Section 10.3

1.10. "Intellectual Property" means any and all copyrights, trademarks, service marks, patents, trade names (registered and unregistered), trade secrets, know-how, inventions, licenses, and all other intellectual property or proprietary rights throughout the world.

1.11. "Indemnified Claims" has the meaning set forth in Section 11.1.

1.12. "Indemnitees" has the meaning set forth in Section 11.1.

1.13. "Marks" means logos and other trademarks, service marks, labels, product names, and service names of Levata and its Agents.

1.14. "Prior Inventions" means any pre-existing invention, discovery, original works of authorship, developments, improvements, trade secrets, concepts or other proprietary information or intellectual property right developed and/or owned by Levata, its Agents, or others prior to the Effective Date of these Terms.

1.15. "Term" has the meaning set forth in Section 6.1.

2. License and Access to the Portal

2.1. Subject to these Terms, Levata grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, and limited license to display, access, and use the Portal, for the duration of the Term and solely for Customer's internal purposes.

2.2. Customer may grant access and use rights to its Authorized Users; provided that (i) Customer agrees to be responsible for the acts and omissions of such Authorized Users in relation to the Agreement (ii) all of Customer's obligations under the Agreement will remain in force and undiminished. In connection with an Authorized User's use of the Portal, Levata may collect certain personal information, which we may use to validate the identity of an Authorized User. Prior to initial access to the Portal, each Authorized User shall electronically execute an acknowledgement appearing on the Portal to the effect that such Authorized User personally consents to the disclosure, collection, storage, and processing of the data provided in connection with the Portal.

2.3. You and each Authorized User will be given a unique user identification ("User ID") and a corresponding passcode or other access code to enable access and use the Portal. You agree to keep your passcode secure and strictly confidential and ensure that all Authorized Users agree to the same. You agree to notify Levata immediately of any change in access and use rights for any Authorized User. Customer acknowledges that Customer, and not Levata, is ultimately responsible for the access to its account by Authorized Users; and Levata disclaims all liability resulting from or arising out of the unauthorized access of Customer's account through any User ID assigned to Customer or its Authorized Users.

3. Conditions of Use

3.1. Customer and its Authorized Users are prohibited from using the Portal for any purpose which would violate any provision of these Terms. Specifically, Customer and Authorized Users shall not (i) copy, modify, or create a derivative work from, reverse engineer, disassemble, decompile, decode, adapt, reverse assemble or otherwise attempt to discover any source code in part or in full; (ii) rent, lease, lend, sell, assign, sublicense, distribute, publish, or otherwise transfer any right in the Portal; (iii) re-sell the Portal or its contents, or permit collection (including but not limited to collection via web-scraping); (iv) use any device, software, or routine to bypass any code of the Portal or to interfere or attempt to interfere with the proper working of the Portal; (v) take any action that imposes an unreasonable or disproportionately large load on the Portal or its host infrastructure; (vi) engage in any automated system or method of data collection from the Portal; (vii) disclose, disseminate, reproduce, or publish any portion of the Portal in any manner or permit the same; (viii) use the Portal to create derivative products or other derivative works; or (ix) disassemble, decompile, manipulate, or reverse engineer any portion of the Portal.

3.2. Customer acknowledges and agrees that the Portal may include reports, results, findings, or other analyses; but all decisions in connection with the use or implementation of such analyses shall be the responsibility of, and made by, Customer. Levata will not perform management functions or make management decisions for Customer.

4. Levata Representations & Warranties

4.1. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PORTAL IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AT CUSTOMER'S SOLE RISK. LEVATA MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE, LOSS OF DATA OR RESULTS OF USE OF THE PORTAL. WITHOUT LIMITING THE FOREGOING, LEVATA DISCLAIMS ANY WARRANTY THAT THE PORTAL WILL BE ACCURATE, ERROR-FREE, OR UNINTERRUPTED, AND LEVATA SHALL NOT HAVE ANY RESPONSIBILITY TO MAINTAIN THE PORTAL OR TO SUPPLY ANY CORRECTIONS, UPDATES, OR RELEASES IN CONNECTION THEREWITH. LEVATA MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, NONINFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE.

5. Customer Representations & Warranties

5.1. Customer represents and warrants that Customer: (i) is a properly organized business entity, in good standing in the locations where it operates or conducts business, and has the corporate power and authority to enter and perform its obligations under these Terms, in accordance with Applicable Law and its articles of incorporation, bylaws, and/or other governance documents; (ii) has obtained all required consents, licenses, approvals, and/or permissions to authorize it to enter and perform its obligations under these Terms; (iii) performance of its duties under these Terms will in no way conflict with or violate any Applicable Law; (iv) it has read and understood these Terms and the services to be provided by Levata; (v) it has the ability and right to provide any information or Customer Data it provides to Levata; and (vi) all information and Customer Data Customer or any Authorized User provides to Levata is accurate, current and complete.

6. Termination

6.1. The term of these Terms commences on the date Customer registers to receive the Portal and continues for so long as the Customer to access the Portal or until it is otherwise terminated (the "Term"). These terms and access to the Portal will automatically terminate if the underlying agreement through which Levata provides other services to Customer expires or is otherwise terminated.

6.2. Levata may terminate these Terms and access to the Portal at any time, without notice. Customer may terminate these at any time Terms by deleting their registered account.

6.3. Either party may terminate these terms immediately upon written notice for the material breach of the other party, which material breach (if curable) has remained uncured for period of thirty (30) days from the date of delivery of written notice thereof to the breaching party.

6.4. Levata may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate or otherwise deny Customer's or any Authorized User's access to or use of all or any part of the Portal without incurring any resulting obligation or liability, if: (i) Levata receives a judicial or other governmental demand or order or law enforcement request that expressly or by reasonable implication requires Levata to do so, in which case Levata shall provide Customer prompt written notice; or (ii) Levata believes, in its reasonable discretion, that: (a) Customer or any Authorized User has accessed or used the Portal beyond the scope of the rights granted or for a purpose not authorized under these Terms; (b) Customer or any Authorized User is or has been involved in any fraudulent or unlawful activities relating to or in connection with the Portal; (c) Customer's use of the Portal in violation of these Terms, or the transmission of any Customer Data, poses any security or vulnerability risk to Levata or the Portal or (d) these Terms expire or are terminated.

7. Documentation

7.1. Levata may, at its sole discretion, from time to time, provide Customer, access to electronic versions of any Documentation. Customer may print and reproduce the Documentation, provided that: (i) the number of such copies is limited to those reasonably necessary for use by Customer, including, without limitation, training, and archival purposes; and (ii) proprietary notices contained in the original copies of the Documentation are reproduced and included in all copies. The copyrighted and proprietary property of Levata and its Agents may not be duplicated or used without Levata's express prior written consent. Any product or service content permitted to be copied, download, or printed must retain all the copyright, and other proprietary notices included by Levata or its Agents.

8. Confidentiality and Security

8.1. During the course of these Terms, each Party may obtain or gain access to nonpublic information from the other Party or its Affiliates that is confidential and proprietary in nature. The Parties agree that at all times, and notwithstanding the termination or expiration of these Terms, they will: (i) retain all ownership rights in and to their Confidential Information; and (ii) use the same standard of care that a Party uses to protect its own Confidential Information of a like nature and, in any event, no less than a reasonable standard of care; and (iii) not use the Confidential Information for any reason other than to fulfill its obligations pursuant to these Terms; and (iv) not use, reproduce, or disclose the Confidential Information to any third party, in each case, without prior express written consent of the other Party. A Party will, and will ensure that its Agents, comply with all of confidentiality and non-disclosure and non-use obligations hereunder. A Party will promptly notify the other Party in the event that a Party learns of any unauthorized release or use of Confidential Information. In the event a Party is required to disclose any Confidential Information by law, court order, or regulatory agency action, a Party will provide the other Party: (i) immediate written notice thereof; (ii) the opportunity to oppose such request for disclosure; and (iii) any cooperation that is reasonably requested by a Party to oppose such request for disclosure. A Party agrees to limit the disclosure to only the Confidential Information specifically required to be disclosed.

8.2. Levata will use commercially reasonable efforts to maintain industry standard safeguards reasonably designed to protect the confidentiality and integrity of, and to prevent unauthorized access to or use of Customer Data. By using the Portal, Customer acknowledges and agrees that the security procedures of the Portal are commercially reasonable. Customer acknowledges and agrees that access to and use of the Portal is through the World Wide Web or other Internet services are NOT necessarily secure, and Levata does NOT warrant that such systems are secure.

8.3. Customer shall be responsible for the security of Customer's (and Authorized User's) use of the Portal and Customer Data, and shall take and maintain appropriate steps to ensure the security of the Customer Data and Customer's use (and the use by Authorized Users) of the Portal. At all times Customer shall use an industry-standard anti-virus software and commercially reasonable security measures to protect Customer, the Portal, and all Customer Data against any viruses, worms, Trojan horses, or other harmful codes and/or devices, operating on your system. Levata may set cookies on an Authorized User's computer as identification to permit access to areas of the Portal in place of login and password and to record use of the Portal; no such cookies shall be accessible by domains outside of Company.

9. Fees

9.1. Levata does not charge any fees for Customer's using the Portal. Any wireless carrier fees, fees relating to the connection and use of the internet, and fees related to the purchase and use of any third party software or services and Customer's use thereof shall be borne by Customer.

10. Ownership

10.1. Customer acknowledges and agrees that Levata exercises no control whatsoever over the content of Customer Data and that Customer is solely responsible for determining whether it can disclose Customer Data to Levata. Accordingly, Levata hereby disclaims and Customer acknowledges and agrees that Levata shall have no liability for the accuracy or usage rights of Customer Data. As between the Parties, Levata acknowledges that Customer is the exclusive owner of all right, title, and interest in and to the Customer Data.

10.2. As between the Parties, Customer acknowledges that Levata is the exclusive owner of all right, title, and interest in and to the Levata Materials. Customer is hereby granted a worldwide, royalty-free right to distribute to its Authorized Users all reports and analyses provided as part of the Portal. Upon termination of the Agreement, Customer's rights to and its use of the Portal and Levata Materials shall promptly cease.

10.3. Providing any suggestions, enhancement requests, recommendations, corrections, or other feedback (collectively, "Feedback") is strictly voluntary. If Customer provides any Feedback to Levata, orally or in writing, Levata shall: (i) own, exclusively, all now known or later discovered rights to the Feedback; (ii) not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any Feedback; and (iii) be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.

11. Indemnification

11.1. Customer will defend, indemnify and hold harmless Levata, its Affiliates and each of their respective officers, shareholders, directors, employees and agents (collectively, "Indemnitees") from and against any and all damages, losses, liabilities, judgements, awards, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs), and in each case regardless of character or form (collectively, "Damages") related to any claim, investigation, audit, regulatory action or other cause of action asserted against any Indemnitee arising out of or relating to any actual or alleged: (i) breach by Customer of and/or its Agents of these Terms; (ii) violation by Customer and/or its Agents of Applicable Law; (iii) the acts and omissions Customer and/or its Agents; (iv) bodily injury, death or personal property damage caused by Customer and/or its Agents; and (vi) disclosure or use by Levata of Customer Data (collectively, "Indemnified Claims").

12. Limitation of Liability

12.1. IN NO EVENT WILL LEVATA BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THESE TERMS, WHETHER BASED IN CONTRACT, TORT, INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT (INCLUDING CLAIMS FOR INDEMNIFICATION AND CLAIMS INVOLVING A BREACH OF A LEVATA'S CONFIDENTIALITY AND PERMITTED USE OBLIGATIONS) WILL LEVATA OR ITS AGENTS' LIABILITY FOR MONETARY DAMAGES UNDER THESE TERMS EXCEED ONE HUNDRED DOLLARS ($100).

13. Miscellaneous

13.1. Assignment. Customer will not transfer assign or subcontract any of its rights or obligations under these Terms without the prior written consent of Levata. These Terms will inure to the benefit of and bind permitted successors and assigns of Customer. Any transfer, assignment, or subcontract made in violation of this section will be voidable and made null at Levata's sole discretion and will be effective as of the date such impermissible Transfer occurred.

13.2. Notices. All notices under these Terms will be in writing and delivered via to the e-mail address provided by Customer during the account registration process.

13.3. Governing Law. These Terms will be governed by the laws of the State of Delaware, without reference to its conflicts of law principles. Jurisdiction and venue for any dispute arising out of these Terms will exclusively rest within the State and Federal Courts of Delaware, and each Party hereby waives all defenses of lack of personal jurisdiction and forum non conveniens related thereto.

13.4. Severability. Each term and provision of these Terms will be valid and enforceable to the fullest extent permitted by law and any invalid, illegal, or unenforceable term or provision will be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid, illegal, or unenforceable term or provision.

13.5. Waiver; Modification. The failure or delay of either Party to exercise any right, remedy or power provided hereunder will not be deemed a waiver of such right, remedy or power. Levata may change the Portal or the services offered by the Portal at any time. Levata may modify these Terms at any time. If Levata makes a material change to these Terms, Levata will inform Customer by sending an email to the email address Customer has provided to Company. Changes will become effective no sooner than thirty (30) days after you are notified. However, changes addressing new functions for the Portal or changes made for legal reasons will be effective immediately. If Customer does not agree to the modified terms for the Portal, Customer should discontinue use of the Portal

13.6. Independent Contractor. Levata, in performance of these Terms, is acting as an independent contractor of Customer.

13.7. Counterparts. These Terms may be executed in one or more counterparts, including by email, facsimile, pdf, or other electronic means, that preserves the original graphic and pictorial appearance of the document, each of which will be deemed an original, but all of which together will constitute one and the same document. In making proof of these Terms, it will not be necessary to produce or account for more than one counterpart executed by the Party against whom enforcement of these Terms is sought.

13.8. Construction. Section headings of these Terms have been added solely for convenience of reference and will have no effect upon construction or interpretation of these Terms. Unless the context otherwise requires, words importing the singular will include the plural and vice-versa. The words "include," "includes" and "including" will mean "include without limitation," "includes without limitation" and "including without limitation," it being the intention of the Parties that any listing following thereafter is illustrative and not exclusive or exhaustive. All references to "days" will mean calendar days, unless otherwise specified. The Parties acknowledge that these Terms was prepared by both Parties jointly, and any uncertainty or ambiguity will not be interpreted against any one Party.

13.9. Equitable Relief; Injunction. Each Party acknowledges that the Intellectual Property, and Confidential Information of the other Party are valuable commercial products, the development of which involved the expenditure of substantial time and money. Any violation of obligations surrounding them will be deemed a material breach of the Agreement, for which the non-breaching party may not have adequate remedy in money or damages, and the non-breaching Party may be entitled to injunctive or other equitable relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.

13.10. Survival. The following provisions will survive the termination or expiration of these Terms: Sections 1, (Definitions) 8 (Confidentiality and security), 10 (Ownership), 11 (Indemnification), 12 (Limitation of Liability), and 13 (Miscellaneous), and such other provisions that by their terms are intended to survive termination or expiration.

13.11. Export Restrictions. Customer must not export or re-export, directly or indirectly, any Portal, Documentation or Confidential Information to any countries outside the United States except as permitted under the U.S. Commerce Department's Export Administration Regulations.