MERSIVE TECHNOLOGIES, INC.
SAAS SERVICES (BETA VERSION) TERMS OF USE

THESE TERMS OF USE (“TERMS”) GOVERN YOUR ACCESS TO AND USE OF OUR PRERELEASE VERSION OF OUR KEPLER SAAS SERVICES INCLUDING ANY CONTENT THEREIN (THE “SAAS SERVICES”). BY ACCEPTING  THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING THE URL COMMAND TO ENABLE THE KEPLER SERVICE, YOU AGREE TO THESE TERMS. THE TERM “AGREEMENT” AS USED HEREIN SHALL MEAN THESE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SAAS SERVICES.

Your purchase and use of certain Services, for example, the Solstice Pod, may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to such Service. These Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.

This Agreement is effective as of the date of your acceptance of this Agreement. Reference to “we”, “our” and “us” in its related variations shall mean Mersive, Inc. or its affiliates, as applicable, from whom you receive the SaaS Services.

1. AUTHORIZED USE. By accepting these Terms, you agree to these Terms on behalf of yourself, your organization and any entity that you represent or on behalf of which you use the SaaS Services. You further agree that you have the authority to bind that organization to these Terms and that you are an authorized user on behalf such organization. The SaaS Services may only be used in connection with your evaluation of the SaaS Services in accordance with Section 3, and in each case in connection with your permitted use of the Solstice Pod(s) to which your account is connected (collectively, the “Authorized Use”). You may only access the SaaS Services and print limited copies of the materials from the SaaS Services for the Authorized Use. You agree not to (a) make the SaaS Services or any data or content therein available to, or use the SaaS Service or data for the benefit of, anyone other than you or the organization for whom you are an authorized user, (b) sell, resell, license, sublicense, distribute, rent or lease the SaaS Services or any data or content therein, or use or include the SaaS Services in a service bureau or outsourcing offering, (c) use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the SaaS Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the SaaS Services or data or content contained therein, (f) attempt to gain unauthorized access to the SaaS Services, any data or content therein, or any systems or networks related thereto, (g) copy or download data or content except as permitted herein or in an order form executed under the master agreement, (h) frame or mirror any part of any SaaS Services, other than framing on your own intranets or otherwise as permitted in the documentation within the SaaS Services, (i) access the SaaS Services, or any content or data therein, to build a competitive product or service, (j) reverse engineer the SaaS Services (except to the extent such restriction is permitted by law), or (k) use the SaaS Services for any competitive purpose. We have the right to terminate or suspend your access and use of the SaaS Services at any time, with or without notice, including for any violation of the above restrictions.

2. RESPONSIBLE USE AND PASSWORDS. You agree to use commercially reasonable efforts
to prevent unauthorized access to or use of the SaaS Service and notify us promptly of any such unauthorized access or use. You may view, download, print and/or retain a copy of reports or other content from the SaaS Services for your own internal purposes. You agree to use the SaaS Services only in accordance with the Agreement and applicable laws and government regulations. You agree not to give or make available your username or password or other means to access your account to any unauthorized individuals. You remain responsible for all access to the SaaS Services via your username and password, even if not authorized by you. If you believe that your password or other means to access your account has been lost or stolen or that an unauthorized person has or may attempt to use the SaaS Services, you must immediately notify us at kepler@mersive.com.

3. PRE-RELEASE VERSION. We are offering the SaaS services on an evaluation basis, and you may use the SaaS Services (or such content) solely for purposes of evaluating its suitability and as otherwise authorized by this Agreement. Your trial use is subject to all other terms and conditions of this Agreement, including, but not limited to, the restrictions in Section 1. At the conclusion of the evaluation period, you shall cease all use of the SaaS Services (or accessing the pre-release content). This pre-release version is not for production use, and is not supported or maintained, and may be subject to additional terms. We may discontinue your access and use at any time in our sole discretion and may elect, in our sole discretion, not to make the any changes or features therein, generally available or part of the SaaS Services, as ultimately made available following commercial launch. We will have no liability for any harm or damage arising out of or in connection with your use of the SaaS Services.

4. RETAINED PROPRIETARY RIGHTS. All rights, title and interest in and to the SaaS Services, including any content therein and all trademarks, logos, patent rights and all other intellectual property rights, belong to us and our licensors. You agree that, subject to the limited rights expressly granted in this Agreement, we on behalf of ourselves and our third party licensors reserve all rights, title and interest in and to the SaaS Services, including all intellectual property rights. No rights are granted to you hereunder other than as expressly set forth in this Agreement.

5. TRADEMARKS. The trademarks, service marks, trade names, and logos, including, but not limited to, page headers, custom graphics, button icons, and scripts (collectively, the “Trademarks”) used and displayed on the SaaS Services are registered and unregistered trademarks, service marks and/or trade dress of us and our licensors, and you many not copy, imitate or use the Trademarks, in whole or in part, for any purpose.

6. FEEDBACK LICENSE. You grant to us and our affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the SaaS Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or any users relating to the operation of the SaaS Services. Comments or feedback that you submit to us about, through or in connection with the SaaS Services shall become our property and by sending us such feedback, you agree to a no-charge assignment to us of all right, title and interest in copyrights and other intellectual property rights on a worldwide basis in and to such feedback, and whether or not such assignments are effective, you agree that are free to use any ideas, concepts, know-how or techniques that you send us for any purpose on an unrestricted basis at no charge.

7. THIRD PARTY CONTENT. As part of the SaaS Services, we may provide hypertext links to sites on the Internet that are operated by unrelated third parties and contain certain third party content, such as without limitation maps, routing instructions, driving directions, billing programs, etc. (“Third Party Content”). By using any such external hypertext link, you acknowledge that you will be leaving our site. You are responsible for independently confirming the accuracy of all Third Party Content, such as without limitation driving directions or the existence of designated routes. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, the use of or reliance on any Third Party Content.

8. INDEMNIFICATION. You agree to defend, indemnify and hold harmless us and our licensors,
and any of our respective officers, directors, employees, subcontractors, agents, successors, assigns, affiliates or subsidiaries, from and against any and all claims, causes of action, lawsuits, proceedings, losses, damages, costs and expenses (including reasonable legal and accounting fees) arising or resulting from (i) your use of the SaaS Services; (ii) your violation of this Agreement; (iii) incomplete or inaccurate information or data provided by you; (iv) unauthorized use of any content or materials available on or through the SaaS Services; or (v) any content you upload or post to the SaaS Services. We reserve the right, at our discretion, to assume or participate, at your and your organization’s expense, in the investigation, settlement and defense of any action or claim to which it is entitled to indemnification. No claim shall be settled without our prior written consent unless such settlement includes a complete release of us, including our affiliates, from all liability and does not contain or contemplate any payment by us or contain any injunctive or other equitable relief binding upon us.

9. WARRANTY DISCLAIMER. THE SAAS SERVICES, INCLUDING ALL CONTENT THEREIN, IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SAAS SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND DATA ACCURACY. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE OPERATION OF THE SAAS SERVICES, THE USE, VALIDITY, ACCURACY OR RELIABILITY OF, OR THE RESULTS OF THE USE OF THE MATERIALS IN THE SAAS SERVICES, OR ANY OTHER WEBSITE LINKED TO THE SERVICES. WE DO NOT WARRANT THAT THE SAAS SERVICES WILL BE FREE FROM INFECTION, VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. WE DO NOT WARRANT THAT THE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED.

10. LIMITATION OF LIABILITY. IN NO EVENT WILL WE, OUR LICENSORS, AND ANY OF OURS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS,
AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES OR SUBSIDIARIES, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, DAMAGES RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION ARISING OUT OF RELATING TO THE USE OR INABILITY TO USE THE SAAS SERVICES, ANY WEBSITES LINKED TO THE SAAS SERVICES, THE CONTENT OR OTHER INFORMATION CONTAINED IN THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. WHILE YOUR USE OF THE SAAS SERVICES IS AT YOUR OWN RISK, IF WE SHOULD HAVE ANY LIABILITY FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE ONLINE SERVICE, OUR TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS SHALL NOT EXCEED FIFTY DOLLARS ($50). YOU ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION, WE AND OUR LICENSORS WOULD NOT PROVIDE THE SAAS SERVICES.

11. MISCELLANEOUS. You agree to comply with all applicable statutes, regulations, and legal obligations, including those relating to the privacy of individuals, regarding your use of the SaaS Services and information obtained from the SaaS Services. You understand and agree that we may, in our sole discretion, report suspected violations to the appropriate authorities or parties. The SaaS Services a may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You shall not permit users to access or use the SaaS Services in any E.U.- or U.S.-embargoed country or in violation of any applicable export law or regulation. If any provision(s) of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing by us. This Agreement may be assigned in whole or in part by us at any time. This Agreement may not be assigned in any manner by you without our prior written permission. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, notwithstanding any conflict of laws provisions. You irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts in Denver, Colorado for any litigation or dispute arising out of or relating to this Agreement, and agree not to commence any litigation arising out of or relating to this Agreement except in such courts.