Beta terms

BETA SERVICES AGREEMENT

Eptura has agreed to make available the Beta Services to Customer, free of charge, subject to Customer’s agreement to be bound by this Beta Services Agreement (“BSA”). Acceptance of the terms of this BSA can be evidenced by: (a) Customer or its Users clicking a box confirming acceptance of this BSA; (b) Customer’s agreement in writing to be bound by this BSA; or (c) Customer’s and/or its Users use of Beta Services.

1. DEFINITIONS

1.1 “AI Systems” means any artificial intelligence or machine learning models, applications, data systems, interfaces, algorithms or utilities.

1.2 “Acceptable Use Policy” means the acceptable use policy at https://eptura.com/terms/acceptable-use-policy.

1.3 “Beta Services” means the services which Eptura shall provide Customer with access to, which are not GA Services.

1.4 “Customer” means the existing customer of Eptura, who is to be provided with access to the Beta Services.

1.5 “Customer Data” means all content and information uploaded, posted, submitted, published, or transmitted by Customer in connection with use of the Beta Services.

1.6 “DPA” means the data processing agreement in place between Customer and Eptura. Where such an agreement is not already in place, the DPA shall be that at https://eptura.com/terms/dpa.

1.7 “Eptura” means the Eptura entity with which Customer has an existing contractual relationship.

1.8 “GA Services” means services which are provided by Eptura to the public with general availability.

1.9 “Party” means a Party to this BSA, and “Parties” shall be construed accordingly.

1.10 “Permitted Sensitive Data” means Sensitive Data which is specifically required to be uploaded, posted, submitted, published, or transmitted to the Beta Services in order for Customer to utilize certain functionality of the Beta Services.

1.11 “Personal Data” means any information that has been provided by or on behalf of Customer for use in the Services that relates to an identified or identifiable person.

1.12 “Prohibited Sensitive Data” means Sensitive Data which is not Permitted Sensitive Data and, for the avoidance of doubt, includes Sensitive Data which is ancillary to Permitted Sensitive Data.
1.13 “Sensitive Data” means an (i) individual’s government-issued identification number (including Social Security number (or equivalent), driver’s license number, or state-issued identification number); (ii) sexual preference or activities, marital status, nationality, racial or ethnic origin; (iii) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access code, personal identification number or password that would permit access to an individual’s financial account; (iv) religious or philosophical beliefs or affiliations, political party membership, or labor or trade union membership; or (v) biometric, genetic, health, medical, or medical insurance data.

1.14 “Term” has the meaning set out in Section 8.1.

1.15 “User” means any party who accesses and uses Beta Services being provided to Customer.

2. SERVICES

2.1 Access Rights. Subject to this BSA, Eptura grants to Customer during the Term a worldwide, non-exclusive, non-transferable right to access and use the Beta Services solely for evaluation and testing purposes. Customer agrees and acknowledges that: (i) no maintenance or support is offered in respect of the Beta Services; (ii) Eptura provides no commitment or undertaking that it shall continue to provide the Beta Services beyond the end of the Term; and (iii) in the event that Beta Services become GA Services, Customer will be required to purchase the GA Services version of the Beta Services and their purchase and use will be subject to a separate legally binding agreement between the Parties.

2.2 Acceptable Use. Customer shall comply with, and shall ensure its Users comply with, the Acceptable Use Policy.

2.3 AI Systems. Customer acknowledges and agrees that: (i) the Beta Services involve Customer and its Users interacting with AI Systems; (ii) AI Systems are not a substitute for human oversight or judgment; (iii) it must disclose to Users when they are interacting directly with AI Systems without human involvement; and (iv) when required by law, it shall provide a means for Users to interact with a human instead of an AI System.

3. PROPRIETARY RIGHTS

3.1 Retained Rights. Subject to the limited rights expressly granted hereunder, Eptura and its licensors reserve all of their right, title, and interest in and to Beta Services including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set out herein.

3.2 Customer Data. As between the Parties, Customer retains all right, title, and interest to Customer Data. Customer grants Eptura a non-exclusive, worldwide, transferable, royalty-free, and fully paid license to use Customer Data solely as necessary to provide Beta Services. Customer represents and warrants that it has the right and authority to provide Eptura with Customer Data for use in connection with Beta Services.

3.3 Feedback. Customer acknowledges that Eptura may utilize Customer suggestions, enhancement requests, comments, or other recommendations (collectively, “Feedback”) for any lawful business purpose, without a duty of accounting to Customer so long as such Feedback does not identify Customer, or any Customer provided Customer Data. No compensation will be paid with respect to Eptura’s use of Feedback. Eptura will own all right, title, and interest, including all related intellectual property rights in any Feedback provided by Customer.

3.4 Aggregate Data. The Parties acknowledge that the Beta Services may collect and aggregate certain de-identified information and data regarding the use and operation of Beta Services by Customer (“Aggregated Data”), and Eptura will be free (during and after the term hereof) to (i) use Aggregated Data to improve and enhance the Beta Services and for other development, diagnostic and corrective purposes in connection with Beta Services and other Eptura offerings, (ii) disclose Aggregated Data solely in aggregate or other anonymized, unidentifiable form in connection with its business; and (iii) use Aggregated Data to develop, train or enhance such AI Systems provided that, for the avoidance of doubt, the Aggregated Data does not include Personal Data and the Aggregated Data is not used in respect of the provision of Services to any other customers or disclosed to any other third parties outside of the terms of this Section 3.4.

4. CONFIDENTIALITY & DATA PRIVACY

4.1 Confidential Information. The term “Confidential Information” means Customer Data, internal policies and procedures of a Party and all other non-public information that a reasonable person should understand to be confidential due to its nature and the circumstances in which it was disclosed and that is disclosed by or on behalf of either Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether such information is disclosed before or after the date of this BSA. Confidential Information excludes information that (i) was in the public domain prior to the time of disclosure; (ii) enters the public domain after disclosure through no action or inaction of the Receiving Party; (iii) is already known by the Receiving Party at the time of disclosure; (iv) is obtained by the Receiving Party from a third party without restriction; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Except as otherwise expressly set out in this BSA, the Receiving Party will not disclose (including, without limitation, distribute, transmit or transfer) or use the Confidential Information of the Disclosing Party or any portion thereof without the prior written consent of Disclosing Party except for the purpose of exercising its rights or performing its obligations under this BSA. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set out in this BSA and Receiving Party will be responsible for any unauthorized disclosure of any Confidential Information by such persons as if Receiving Party had made such unauthorized disclosure itself. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by Law so long as the Receiving Party gives the Disclosing Party (to the extent legally permissible) prompt written notice prior to the disclosure and reasonable assistance in limiting disclosure or obtaining a protective order. Eptura may disclose the agreement between the Parties to actual and potential investors and funding sources who agree to hold it in confidence. The Receiving Party agrees to take steps designed to protect the Disclosing Party’s Confidential Information that are substantially similar to those it takes to protect its own proprietary information (but not less than reasonable care) from unauthorized disclosure. Receiving Party will promptly notify the Disclosing Party if the Receiving Party becomes aware of any misuse or unauthorized disclosure of Confidential Information.

4.2 Return of Confidential Information. Upon Disclosing Party’s written request, Receiving Party will return or destroy all Confidential Information. However, Receiving Party is permitted to retain copies of the Confidential Information for archival, audit, disaster recovery, legal and/or regulatory purposes, and Receiving Party will not be required to purge Confidential Information from the electronic back-up files of its computer systems, on condition that any Confidential Information so retained will remain subject to the obligations and restrictions set out in this BSA.

4.3 Injunctive Relief. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information of the Disclosing Party may result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security.

5. DATA SECURITY & PROCESSING. Eptura will process Customer Data in relation to the Beta Services in accordance with the DPA. Any reference in the DPA: (i) to Services or Subscription Services shall be deemed to be a reference to Beta Services; and (ii) to the date of an order, shall be deemed to be the date of acceptance of this BSA. Customer agrees and acknowledges that it is prohibited from uploading, posting, submitting, publishing, or transmitting any Prohibited Sensitive Data to the Beta Services and that Eptura shall have no liability should Customer or the Users not comply with this prohibition.

6. REPRESENTATIONS.
Each Party represents and warrants that it has the full corporate right, power, and authority to enter into and perform its obligations under this BSA.

7. LIMITATION OF LIABILITY & DISCLAIMER

7.1 Limitation of liability: IN NO EVENT WILL EPTURA HAVE ANY LIABILITY UNDER THIS BSA WHATSOEVER, INCLUDING BUT NOT LIMITED TO PURE ECONOMIC LOSS OR LOSS OF REVENUE OR PROFITS; LOSS OF USE OR DAMAGE TO DATA; COST TO PROCURE SUBSTITUTE SERVICES; LOSS OR DEPLETION OF GOODWILL; OR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.

7.2 Disclaimer: EPTURA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER INCLUDING THAT BETA SERVICES ARE ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. EPTURA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. THE BETA SERVICES MAY BE SUBJECT TO BUGS, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN NON-GA SERVICES AND THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ANY USE OF THE BETA SERVICES IS SOLELY AT THE RISK OF CUSTOMER.

8. TERM & TERMINATION

8.1 Term. The Beta Services shall be made available until the earlier of: (i) the Beta Services becoming GA Services; (ii) termination of the Beta Services pursuant to Section 8.2; and (iii) December 31, 2025.

8.2 Termination. Either Party may terminate this BSA upon 30 days’ written notice EXCEPT THAT where Eptura identifies any breach or suspected breach of any of this BSA by Customer or its Users it shall be entitled to terminate this BSA with immediate effect.

8.3 Effects of Termination. Following the end of the Term, Customer’s use of Beta Services shall immediately cease.

8.4 Survival. If this BSA os terminated for any reason, all remedies for breach, rights to accrued payments and Sections 1, 2.1(iii), 3.3, 4, 7, 8.3, and 9 will survive termination or expiration of this BSA.

GENERAL TERMS
9.1 Assignment. Neither Party may transfer or assign any of its rights or delegate any of its obligations under this BSA, in whole or in part and including any transfers by operation of law, without the prior written consent of the other Party.

9.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. This BSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party will have authority to contract for or bind the other Party in any manner whatsoever.

9.3 Third-Party Beneficiaries. This BSA is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this BSA.

9.4 Compliance with laws. Each Party will comply with all laws in the performance of its obligations under this BSA, including (without limitation) those relating to international sanctions and embargoes.

9.5 Governing Law. All matters arising out of or relating to this BSA and any dispute or claim arising out of or in connection with them or their subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the domestic law of Eptura and the courts of the same jurisdiction shall retain exclusive jurisdiction. For Customers contracting with Eptura, Inc. the governing law shall be New York and the courts of the state of New York shall have exclusive jurisdiction.

9.6 Notices. Any notice required or permitted to be given will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate Party at the address set out on Order and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier

9.7 Entire Agreement and Amendments. This BSA set forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, and discussions and understandings, written or oral, with respect to such subject matter and no amendment, waiver or modification of this BSA shall be effective and binding unless signed by both parties. If any provision of this BSA is deemed invalid, illegal, or unenforceable, that provision will be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision. The remainder of this BSA will remain valid and enforceable in accordance with its terms.