Legal Agreements

Acceptable Use Policy

This ACCEPTABLE USE POLICY (“AUP”) describes acceptable use of and access to the System offered by Levitate Bio LLC (“Levitate”). BY ACCESSING OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AUP. If you violate this AUP or authorize or help others to do so, Levitate may suspend or terminate your use of the System in accordance with the terms of the Levitate Bio Software as a Service Agreement (the “SaaS Agreement”).

Unless otherwise defined herein, all capitalized terms used within this AUP have the same meaning as ascribed to such terms in the SaaS Agreement.

PROHIBITED USE AND CONTENT. Customer may not upload content or use the System in a manner that Levitate believes:

Violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a “Law”);
Violates or otherwise encroaches on the rights of others, including, but not limited to, infringing or misappropriating any intellectual property or proprietary right of another;
Modifies, alters, tampers with, repairs, or otherwise creates derivative works of any software included in the System;
Allows access to the System by third parties (except as permitted in the SaaS Agreement or herein);
Provides System passwords or other log-in information to any third party;
Shares non-public System features or content with any third party;
Allows access to the System in order to build a product or service competitive with the System, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System;
Reverse engineers, disassembles, or decompiles the System or software included in the System;
Accesses or uses the System in a way intended to avoid incurring fees or exceeding usage limits or quotas;
Interferes with or disrupts the System or servers or networks connected to the System;
Attempts to gain unauthorized access to any portion of the System or any System Components, whether through hacking, password mining, or any other means;
Violates the security or integrity of a System Component, including, but not limited to:
1. Accessing or using any System Component without permission, including attempts to probe, scan, or test the vulnerability of a System Component or to breach any security or authentication measures used by a System Component. Security testing and scanning requires permission from Levitate prior to Customer initiating such testing;
2. Monitoring data or traffic on a System Component without permission;
3. Forging packet or email headers, or any part of a message describing its origin or route;
4. Uploading content that contains viruses, worms, corrupt files, Trojan horses, or other forms of corruptive code, or any other content that may compromise the System; or
5. Hacking, destabilizing, or adapting the System, or altering another website to falsely imply it is affiliated with the System;
Connects to any users, hosts, or networks where Customer does not have permission to communicate with such users, hosts, or networks, including, but not limited to:
1. Monitoring or crawling a System Component so that such System Component is impaired or disrupted;
2. Conducting denial of service attacks;
3. Intentionally interfering with the proper functioning of any System Component, including any deliberate attempt to overload the System by any means;
4. Operating network services like open proxies, open mail relays, or open recursive domain name servers; or
5. Using means (manual or electronic) to avoid any use limitations placed on a System Component, such as access and storage restrictions;

Levitate has the sole discretion to determine whether Content or Customer’s use of the System is prohibited. All content that is provided to Levitate or actions that are performed via Customer’s account, whether provided or performed by Customer’s employees, Customer’s contractors, or Customers’ Users, are the sole responsibility of Customer.

MONITORING AND ENFORCEMENT. While not obligated to perform investigations, in accordance with the terms of the SaaS Agreement, Levitate may:

Investigate violations of this AUP or misuse of the System;
Investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity;
Remove, disable access to, or modify any content or resource that Levitate believes violates this AUP or any other agreement Levitate has with Customer for use of the System; or suspend or terminate provision of System to Customer for uses that violate this AUP or any other agreement Levitate has with Customer for use of the System.

Levitate may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Levitate’s reporting may include disclosing appropriate Customer information. Levitate also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this AUP.

REPORT VIOLATIONS. Customer can report abuse of this AUP to support@levitate.bio.

MODIFICATIONS TO THE AUP. Levitate may, in its sole and absolute discretion, modify this AUP from time to time. Levitate will post notice of such changes on www.levitate.bio If Customer objects to any such changes, Customer’s sole recourse shall be to cease using the System. Continued use of the System following notice of any such changes shall indicate Customer’s acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

CONTACT US. If Customer has any questions or suggestions regarding this AUP, please contact Levitate at support@levitate.bio.

Privacy Policy

Levitate Bio LLC. (the “Company”) is committed to maintaining robust privacy protections for its users. Our Privacy Policy (“Privacy Policy”) is designed to help you understand how we collect, use and safeguard the information you provide to us and to assist you in making informed decisions when using our System.

For purposes of this Agreement, “System” refers to Levitate’s Bench software as a service, made available via secure computing cloud, for protein modeling and design, including but not limited to “CAD” at cad.levitate.bio and any other service included in the Bench package. It does not apply to any third party website or service linked to the System or recommended or referred to through the System or by Company’s staff.

The terms “we,” “us,” and “our” refer to the Company. “You” refers to you, as a user of System. By subscribing to a plan for the System, you agree that you are accepting our Privacy Policy, and you consent to our collection, storage, use and disclosure of your personal information as described in this Privacy Policy.

INFORMATION WE COLLECT. We collect “Non-Personal Information” and “Personal Information.” Non-Personal Information includes information that cannot be used to personally identify you, such as anonymous usage data, general demographic information we may collect, referring/exit pages and URLs, platform types, preferences you submit and preferences that are generated based on the data you submit and number of clicks. Personal Information includes data such as your name, email address, and billing information.
1. Information collected via Technology. In an effort to improve the quality of the System, we track information provided to us by your browser or by our System when you view or use the System, such as the time and date of access, you interactions our websites, and other information that does not personally identify you. One way that we track this information is by using cookies, or small text files which include an anonymous unique identifier. Cookies are sent to a user’s browser from our servers and are stored on the user’s computer hard drive. Sending a cookie to a user’s browser enables us to collect Non-Personal information about that user and keep a record of the user’s preferences when utilizing our Systems, both on an individual and aggregate basis. The Company may use both persistent and session cookies; persistent cookies remain on your computer after you close your session and until you delete them, while session cookies expire when you close your browser.
2. Information you provide us by subscribing to the System. In addition to the information provided automatically by your browser when you visit the System, to become a subscriber to the System you will need to provide us with customer information. By subscribing, you are authorizing us to collect, store and use this information.
3. Type of Information Collected. We collect the following types of information:
  1. Basic contact information.
  2. Billing information.
  3. Information on your participation at corporate events.
  4. Your interactions with our websites and emails.
  5. A log of your site usage including login time, length of login, server login (CAD or HM) and other user-level data is collected as part of our billing system. (“Derivative Data”).
  6. Data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users (“Customer Data”).
HOW WE USE AND SHARE INFORMATION.
1. Personal Information. Except as otherwise stated in this Privacy Policy, we do not sell, trade, rent or otherwise share for marketing purposes your Personal Information with third parties without your consent. We do share Personal Information with subcontractors and vendors who are performing Systems for the Company, such as the servers for our email communications who are provided access to user’s email address for purposes of sending emails from us. Those vendors use your Personal Information only at our direction and in accordance with our Privacy Policy. In general, the Personal Information you provide to us is used to help us communicate with you. For example, we use Personal Information to contact users in response to questions, solicit feedback from users, provide technical support, and inform users about promotional offers.
2. Non-Personal Information. In general, we use Non-Personal Information to help us improve the System and customize the user experience. We also aggregate Non-Personal Information in order to track trends and analyze use patterns on the System. This Privacy Policy does not limit in any way our use or disclosure of Non-Personal Information and we reserve the right to use and disclose such Non-Personal Information to our partners, advertisers and other third parties at our discretion. In the event we undergo a business transaction such as a merger, acquisition by another company, or sale of all or a portion of our assets, your Personal Information may be among the assets transferred. You acknowledge and consent that such transfers may occur and are permitted by this Privacy Policy, and that any acquirer of our assets may continue to process your Personal Information as set forth in this Privacy Policy. If our information practices change at any time in the future, we will post the policy changes to the System so that you may opt out of the new information practices. We suggest that you check the System periodically if you are concerned about how your information is used.
3. Customer Data. Unless it receives Customer’s prior written consent, Company: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the functioning of the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Company’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Company may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Company shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
HOW WE PROTECT INFORMATION. The security and privacy of our Customer Data is a top priority at Levit ate. We adhere to state of the art industry practices for security and privacy of your data including administrative, physical and technical safeguards, as described in the Security Documentation, which will be provided to Customer upon request. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks.
YOUR RIGHTS REGARDING THE USE OF YOUR PERSONAL INFORMATION. When we send a promotional communication to a User, the User can opt out of further promotional communications by following the unsubscribe instructions provided in each promotional e-mail, or by contacting us at support@levitate.bio. Please note that notwithstanding the promotional preferences you indicate by unsubscribing, we may continue to send you administrative emails including, for example, periodic updates to our Privacy Policy.
LINKS TO OTHER WEBSITES. As part of the System, we may provide links to or compatibility with other websites or applications. However, we are not responsible for the privacy practices employed by those websites or the information or content they contain. This Privacy Policy applies solely to information collected by us through the System. Therefore, this Privacy Policy does not apply to your use of a third party website. To the extent that you access or use the System through or on another website or application, then the privacy policy of that other website or application will apply to your access or use of that site or application. We encourage our users to read the privacy statements of other websites before proceeding to use them.
CHANGES TO OUR PRIVACY POLICY. The Company reserves the right to change this policy and our Terms of System at any time. We will notify you of significant changes to our Privacy Policy by sending a notice to the primary email address specified in your account or by placing a prominent notice on our site. Significant changes will go into effect 30 days following such notification. Non-material changes or clarifications will take effect immediately. You should periodically check the System and this privacy page for updates.
CONTACT US. If you have any questions regarding this Privacy Policy or the practices of this System, please contact us by sending an email to support@levitate.bio

Last Updated: This Privacy Policy was last updated on June 10, 2024.

Software as a Service Agreement

Last Modified: September 18, 2024

This Software as a Service Agreement (this “Agreement”) is a binding contract between the entity listed on the applicable order form or account (“Customer”) and Levitate Bio LLC (“Levitate”). This Agreement governs Customer’s access to and use of the Levitate Subscription Services. The Levitate Subscription Services provided under this Agreement are for business or commercial, and not personal or consumer, use.

THIS AGREEMENT TAKES EFFECT AT THE EARLIEST OF WHEN CUSTOMER CLICKS THE “I ACCEPT” BUTTON BELOW OR EXECUTES AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE, OR ACCESSES OR USES THE LEVITATE SUBSCRIPTION SERVICES (the “Effective Date”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW, OR EXECUTING AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE, OR ACCESSING OR USING THE LEVITATE SUBSCRIPTION SERVICES, CUSTOMER (A) ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BIND THAT ENTITY; AND (C) AGREES THAT IT IS LEGALLY BOUND BY ITS TERMS.

IF CUSTOMER DOES NOT ACCEPT THIS AGREEMENT, IT MAY NOT ACCESS OR USE THE LEVITATE SUBSCRIPTION SERVICES.

1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.

1.1. “Access Credentials” means the user identification name and password and/or other access keys or controls for the Levitate Subscription Services.

1.2. “Customer Data” means data in electronic form, which is input or derived from input and collected as output through the Levitate Subscription Services by or from Customer, including without limitation by Customer’s Users. This includes, but is not limited to, protein modeling or design information or calculations, protein scores and structural designs.

1.3. “Documentation” means Levitate’s digital tutorial and instructions related to use of the Levitate Subscription Services, as well as any Levitate Subscription Services diagrams or descriptions of the Levitate Subscription Services’ functioning and technical operations.

1.4. “Order Form” means an order form or online order entered into, including by clicking “I accept” through an online portal, between Customer and Levitate that references this Agreement and describes the Levitate Subscription Services to which Customer is subscribing to.

1.5. “Subscription Term” means the term of any individual Levitate Subscription Services subscription, as specified in one or more separate Order Forms.

1.6. “Levitate Subscription Services” means Levitate’s proprietary software as a service and application program interface (API) service, made available via a secure computing cloud, for protein modeling and design, including but not limited to cad.levitate.bio and any other service included in the Order Form.

1.7. “User” means an employee, temporary employee, or agent who is authorized by Customer to use the Levitate Subscription Services solely on Customer’s behalf or through Access Credentials assigned to Customer.

1.8. “Online Policies” means Levitate’s policies posted on its website (the “Site”) at levitate.bio/legal/, including but not limited to the “Privacy Policy” and the “Acceptable Use Policy” which may be updated from time to time by Levitate in its sole discretion by posted an updated version of the Policies to the Site. New versions of the Online Policies become effective on the date they are posted to the Site.

2. THE LEVITATE SUBSCRIPTION SERVICES.

2.1. Use of the Levitate Subscription Services. The Order Form(s) will identify the features, functions, and, where applicable, the number of computing credits (“Credits”) available for use by Customer’s Users during the Subscription Term (a “Plan”). During the Subscription Term, Levitate hereby grants to Customer and its Users a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Levitate Subscription Services for its internal business purposes, subject to the following terms: (a) the Plan(s) specified by any Order Form; (b) the Agreement and accompanying exhibits; and (c) the Online Policies. Customer agrees that its use and subscription to the Levitate Subscription Services is not contingent on the delivery of any future functionality or features.

2.2. Users. Only Users may use the Levitate Subscription Services and solely for Customer’s internal business purposes. Plans are granted on an enterprise-basis with an unlimited number of Users. By granting Users access to the Levitate Subscription Services, Customer acknowledges and agrees that its Users shall have access to its Customer Data. Customer is solely responsible for all use of the Levitate Subscription Services by its Users; Levitate shall not be responsible or liable for any misuse of the Levitate Subscription Services or Customer Data by Customer’s Users. Each individual User’s use of the Levitate Subscription Services is bound and governed by the terms of this Agreement.

2.3. Access Credentials. Access Credentials for User accounts will be activated upon Customer’s submission of individual usernames and email addresses to Levitate. Customer will ensure that each User uses a unique password and that usernames and passwords are not shared. Customer shall promptly notify Levitate to deactivate Access Credentials that become lost, stolen, or compromised, or in the event an individual is no longer authorized to be a User. Customer is responsible for maintaining the confidentiality of its account credentials and for all activities that occur under its account. Customer agrees to notify Levitate immediately of any unauthorized use of Customer’s account.

2.4. Documentation. Customer may reproduce and use the Documentation only as necessary to support Users’ use of the Levitate Subscription Services.

2.5. Levitate Subscription Services Revisions. Levitate may revise Levitate Subscription Services features and functions at any time without notice, including without limitation improvements in or removal of existing features and functions and addition of new features and functions (“System Revisions”). Any such System Revisions shall be considered part of the Levitate Subscription Services and governed by this Agreement. System Revisions exclude new products or features for which Levitate generally charges a separate license fee or upgrade fee.

2.6. Rosetta License. Customer acknowledges and agrees that it must separately obtain and maintain a valid license to the Rosetta software from the University of Washington in order to use the Levitate Subscription Services at its own expense (the “Rosetta License”). The Rosetta License is solely between Customer and the University of Washington, including any exchange of Customer Data between Customer and the University of Washington. Use of the Rosetta software is governed exclusively by the Rosetta License and not by this Agreement. Without limiting the foregoing, Levitate does not make any warranties regarding the Rosetta software and disclaims any and all liabilities related to the Rosetta License.

3. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

3.1. Usage Restrictions. Customer will not, directly or indirectly (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying system architecture, structure, ideas, know-how, or algorithms relevant to the Levitate Subscription Services or any software, documentation, or data related to the Levitate Subscription Services; or (ii) modify, translate, or create derivative works based on the Levitate Subscription Services or any software related to the Levitate Subscription Services (except to the extent expressly permitted by Levitate or authorized with the Levitate Subscription Services); or (iii) remove any proprietary notices or labels; or (iv) tamper with, bypass, or alter the security features of the Levitate Subscription Services or any of the hosted infrastructure; or (v) use the Levitate Subscription Services or its Documentation for purposes of competitive analysis, the development of a competing software product or service, or any purpose that is detrimental to Levitate or to its commercial disadvantage.

3.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Levitate Subscription Services, including without limitation by protecting its Access Credentials. Customer shall notify Levitate immediately of any known or suspected unauthorized use of the Levitate Subscription Services or breach of its security and shall use best efforts to stop any such breach.

3.3. Compliance with Laws. Customer shall comply with all laws applicable to its use of the Levitate Subscription Services, including without limitation laws governing the protection of personally identifiable information and Customer Data.

3.4. Users & Levitate Subscription Services Access. Customer is responsible and liable for: (a) Users’ use of the Levitate Subscription Services, including without limitation unauthorized User conduct and any User conduct that would violate the Acceptable Use Policy or the requirements of this Agreement applicable to Customer; and (b) any use of the Levitate Subscription Services through Customer’s account or Access Credentials, whether authorized or unauthorized. Customer shall promptly notify Levitate if any User’s Access Credentials have been or is suspected of being lost, stolen or compromised. Customer shall indemnify and hold Levitate and its officers, directors, employees, affiliates and agents harmless from any damages, claims or expenses arising from Customer or its Users’ breach of this Agreement (including the entirety of this Section 3 and any terms incorporated by reference into this Agreement) and for any use of the Levitate Subscription Services through its Access Credentials. Levitate complies with its privacy policy, available at https://levitate.bio/legal#privacy-policy (“Privacy Policy”), in providing the Levitate Subscription Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Levitate Subscription Services, Customer acknowledges that it has reviewed and accepted the Privacy Policy, and consents to all actions taken by Levitate with respect to Customer’s information in compliance with the then-current version of the Privacy Policy.

3.5. Required Equipment and Security. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services or software needed to connect to, access or otherwise use the Levitate Subscription Services, including, without limitation, the Rosetta License referenced in Section 2.6, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall be responsible for and shall implement appropriate security measures to safeguard its Access Credentials, and to maintain the security of the Equipment, Customer account, Customer Data, and files.

4. LEVITATE SUBSCRIPTION SERVICES FEES; COMPUTING CREDITS. The fees payable to Levitate for access to the Levitate Subscription Services are set forth in the Order Form (“Subscription Fees”).

4.1. Fee Payment. Customer shall pay all Subscription Fees as specified in the applicable Order Form. Except as otherwise specified herein or agreed, (i) Subscription Fees are quoted and payable in United States Dollars, (ii) fees are based on Plan purchases and not actual usage, and (iii) payment obligations are non-cancelable and Subscription Fees paid are non-refundable.

4.2. Billing correction. If Customer believes that Levitate has billed Customer incorrectly, Customer must contact Levitate no later than the invoice due date in order to receive an adjustment or credit. Inquiries should be directed to Levitate’s customer support department, support@levitate.bio.

4.3. Invoicing Terms. Unless otherwise specified on an Order Form, Levitate will invoice Customer in full on an annual basis in advance of the applicable Subscription Term. Payment of undisputed invoices must be made within 30 days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection including reasonable attorneys’ fees. Levitate’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, excise, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s use of the Levitate Subscription Services and the transactions contemplated hereunder. All such Taxes shall be added to Levitate’s invoice; provided however, that if any such Taxes are not added to the Levitate invoice, Customer is still responsible for paying all such Taxes. If Levitate has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to, and paid by Customer; provided further however, that if Customer has already remitted any such Tax to the proper authorities and provides evidence reasonably satisfactory to Levitate of such remittal, then Customer shall not be required to pay such Tax(es) to Levitate for remittal to the proper authorities.

4.4. Suspension of Subscription and Acceleration. If any amount owing by Customer under this or any other agreement for the Levitate Subscription Services is thirty (30) or more days overdue, Levitate may, without limiting its other rights and remedies: (a) temporarily suspend Customer’s access to the Levitate Subscription Services until all such amounts are paid in full; or (b) terminate this Agreement and Customer’s access to the Levitate Subscription Services.

4.5. Computing Credits. Some Plans allocate Customer a specific number of computing credits available for usage by Customer’s Users (the “Credits”). Where so indicated on the Order Form, a fixed number of Credits are allocated for usage based on the Plan and the Subscription Term (“Term Credits”). Where Customer’s Plan provides Term Credits, the following terms apply:

(a) Credit Value. Each computing task on the Levitate Subscription Services requires a certain number of Credits to complete the task (the “Credit Value”). The Credit Value for a task varies on a task-by-task basis and is subject to change. A current schedule of Credit Values is accessible by Users from the Levitate Subscription Services and may be updated by Levitate from time to time by posting an updated schedule to the Site.

(b) Monitoring Credit Usage. The Levitate Subscription Services provides a utility which provides the following information: total Credits remaining in the Subscription Term, tasks completed, Users who completed the tasks, completion timestamps and number of Credits used by tasks.

(c) Unused Credits. Unused Term Credits will expire and be forfeited if (i) for Commercial Plans, Customer does not renew the Plan prior to the last day of the then-current Subscription Term, or, (ii) for Academic Plans, Customer does not purchase an additional Academic Plan with Credits of the same or higher value of the then current Plan within twelve (12) months of commencement of the then-current Subscription Term. If Customer timely renews or purchases an additional Plan in accordance with this Section 4.5(c), any used Term Credits will rollover to the new Subscription Term.

5. TERMS UNIQUE TO CUSTOMER TYPE

5.1. Terms Specific to Commercial Customers.

(a) Upgrades to Commercial Plans. Customers with an Order Form that designates a Commercial Plan subscription can upgrade to a higher tier Plan at any time during the Subscription Term, with a choice of simply completing the current Subscription Term, or extending to a longer Subscription Term. The full amount due for the remaining duration of the current Subscription Term at the new Plan price may be invoiced immediately as set forth in Section 4.3 above. A Commercial Plan cannot be downgraded to a lower tier Plan before the expiration of the current Subscription Term; notice of renewal with a downgrade must be received by Levitate in writing at least 60 days prior to the expiration of the then-current Subscription Term.

(b) Customer Support. Phone support relating to use of the Levitate Subscription Services is included in all Plan subscription packages. Phone support is available only during the hours of 9:00am to 5:00pm US Pacific Time or by appointment on non-holiday workdays (Monday through Friday) with at least 24-hour advance notice by email to Levitate support staff. Email support is included in all Plans on non-holiday workdays (Monday through Friday). Support requests can be sent to Levitate at support@levitate.bio. Levitate does not provide Customer support on the Rosetta application under this Agreement. Customer may purchase Rosetta application support under a separate agreement with Levitate.

(c) User Training. A training session for up to 10 Users will be provided to Customers with subscriptions Commercial Plans only at no additional cost. Training is web-based, instructor-led, and lasts up to 4 hours. Levitate will make reasonable efforts to provide additional training sessions at no charge to accommodate new Users.

5.2. Terms Specific to Academic Customers.

(a) Upgrades to Academic Plans. Customers with an Order Form that designates an Academic Plan subscription can purchase the same or higher tier Plan at any time during the Subscription Term before the entirety of the Term Credits have been used. Payment of the full amount due for the new Credits may be invoiced immediately pursuant to this Agreement. Payment of the full amount due for the remaining duration of the current Subscription Term at the new Plan price may be invoiced immediately as set forth in Section 4.3 above.

(b) Customer Support. Rosetta application support is only provided via paid services, under separate agreement with Cyrus. Email support is included in all Plans on non-holiday workdays (Monday through Friday). Support requests should be initiated by Users at Customer by email to support@levitate.bio.

(c) User Training. Training videos will be provided free of charge, and Customer may request live training sessions for a fee by emailing support@levitate.bio.

6. CUSTOMER DATA. 6.1. Data Accuracy. Levitate shall have no responsibility or liability for the accuracy of data uploaded to the Levitate Subscription Services by Customer, including without limitation Customer Data and any other data uploaded by Users.

6.2. Data Deletion. Customer acknowledges and agrees that Levitate may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for thirty (30) days or more.

6.3. Customer Data. As between the parties, Customer retains all its right, title, and interest in and to the Customer Data. Customer is solely responsible for the development, content, operation, use and selection of Customer Data to upload to the Levitate Subscription Services. All Customer Data must comply with the terms of the Acceptable Use Policy, and applicable legal and regulatory requirements relating to the Customer Data (including required retention periods and export control laws and regulations). Customer shall: (i) ensure that the Customer Data does not contain any Malicious Code; and (ii) shall maintain backup copies of the Customer Data outside the Levitate Subscription Services. Customer grants to Levitate the right to access and use Customer Data as needed to provide the Levitate Subscription Services, and the right to use aggregated Customer Data to improve and develop new services. Customer shall indemnify and hold Levitate and its officers, directors, employees, affiliates and agents harmless from any damages, claims or expenses arising from Customer or its Users’ breach of this Section 6.3.

7. PROPRIETARY RIGHTS.

7.1. Levitate Subscription Services. All ownership rights in and to the Levitate Subscription Services and any related Documentation (including any corrections, adaptations, enhancements thereto or authorized copies thereof) shall remain exclusively with Levitate and its licensors, as applicable. All rights not specifically granted in this Agreement are reserved by Levitate and its licensors. Levitate shall own all rights in any functionality, features, modifications, improvements or customizations of the Levitate Subscription Services (and any Documentation). Customer recognizes that the Levitate Subscription Services and its components are protected by copyright and other laws.

7.2. Usage Data. Notwithstanding anything to the contrary, Levitate shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Levitate Subscription Services and related systems and technologies (the “Usage Data”). For the avoidance of doubt, Customer Data is not Usage Data. Levitate shall own all right, title, and interest in and to the Usage Data. Levitate will be free (during and after the Term hereof) to (i) use such information and Usage Data to improve and enhance the Levitate Subscription Services and for other development, diagnostic and corrective purposes in connection with the Levitate Subscription Services and other Levitate offerings, and (ii) disclose such Usage Data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted to the Usage Data except as expressly set forth herein.

7.3. Customer Data. Customer grants Levitate the limited, revocable, non-sublicensable, non-transferable license to access and use the Customer Data solely for processing the Customer Data within the Levitate Subscription Services. Notwithstanding the foregoing, employees of Levitate will not access Customer Data without prior written consent from Customer and will only access Customer Data to provide support. Customer shall own all right, title and interest in and to the Customer Data and, except for the license rights expressly granted herein, Levitate shall have no claims of ownership or rights of any sort as to Customer Data.

7.4. Feedback. To the extent Customer provides Levitate with any feedback, ideas, or technical improvement suggestions about the Levitate Subscription Services (“Feedback”), Customer acknowledges and agrees that Levitate shall be the owner of all such Feedback and may use and incorporate the Feedback into the Levitate Subscription Services without compensation or attribution to Customer.

8. CONFIDENTIAL INFORMATION. The term “Confidential Information” includes all information, software and data furnished by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written or machine-readable form, which is proprietary in nature and is not readily available to the public. Confidential Information includes, without limitation, all Customer Data and any financial information, product plans, trade secrets or other non-public information regarding the Disclosing Party’s business, technology, customers, employees or personnel. Notwithstanding the foregoing, Confidential Information does not include information that: (i) has entered the public domain through no action or failure to act of the Receiving Party; (ii) prior to disclosure hereunder was already lawfully in Receiving Party’s possession without any obligation of confidentiality; (iii) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party who has the right to disclose such information to the Receiving Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.

8.1. Nondisclosure. The Receiving Party will safeguard the Confidential Information of the Disclosing Party with at least the same degree of care that it utilizes to safeguard its own Confidential Information, but in any event not less than a reasonable degree of care. The Receiving Party agrees (a) not to disclose the Confidential Information of the Disclosing Party to any third parties (except for its subcontractors or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision), and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Receiving Party will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Disclosing Party. The Receiving Party shall promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable laws or regulations or by proper legal or governmental authority, provided that if the Receiving Party becomes aware that it will be required to disclose Confidential information, it will, to the extent it is lawfully able to do so, prior to any such disclosure notify the Disclosing Party of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.

8.2. Injunction. The Parties agree that breach of this Section 8 would cause the Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

8.3. Termination & Return. With respect to each item of Confidential Information, the obligations of this Section 8 will terminate five (5) years after the Effective Date of the Agreement; provided that such obligations related to Confidential Information constituting either Party’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, the Receiving Party shall return all copies of Confidential Information to the Disclosing Party or certify, in writing, the destruction thereof.

8.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. The Disclosing Party will retain all right, title, and interest in and to all its Confidential Information.

9. REPRESENTATIONS & WARRANTIES.

9.1. From Levitate. Levitate represents and warrants that it is the owner of, and/or has all necessary rights in and to the Levitate Subscription Services to grant the rights and licenses granted in this Agreement without the further consent of any third party.

9.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has and will provide accurate and complete information in connection with its access to the Levitate Subscription Services; (c) it is duly organized, and validly existing and in good standing to do business pursuant to applicable law; (d) it has sufficient rights title, and interests in and to any Customer Data and all necessary permissions to upload and use the Customer Data within the Levitate Subscription Services and to grant the license to use the Customer data on the terms set forth in this Agreement; and (e) Customer’s use of the Levitate Subscription Services will be in compliance with any and all applicable laws, rules, and regulations.

9.3. Warranty Disclaimers. Except to the extent set forth in Section 9.1 above, CUSTOMER ACCEPTS THE LEVITATE SUBSCRIPTION SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) LEVITATE DOES NOT REPRESENT OR WARRANT THAT THE LEVITATE SUBSCRIPTION SERVICES WILL PERFORM WITHOUT INTERRUPTION, WILL SATISFY CUSTOMER’S REQUIREMENTS, WILL BE FREE OF ERRORS OR OMISSIONS, OR WILL OPERATE WITH ANY HARDWARE OR SOFTWARE NOT SPECIFIED IN THE DOCUMENTATION; AND (b) LEVITATE DOES NOT REPRESENT OR WARRANT THAT THE LEVITATE SUBSCRIPTION SERVICES WILL BE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

10. INDEMNIFICATION.

10.1. From Levitate. Levitate agrees to indemnify, defend, and hold harmless Customer and its officers, directors, agents, and employees from and against any and all third party claims, demands, damages, liabilities and costs, incurred by Customer which directly or indirectly result from, or arise in connection with claims arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property; (b) any grossly negligent act or omission of Levitate, its agents, or employees, pertaining to its activities and obligations under this Agreement, or (c) third party claims of infringement or misappropriation of intellectual property caused by the Levitate Subscription Services. The obligation in Section 10.1(c) does not apply with respect to portions or components of the Levitate Subscription Services (i) not supplied by Levitate, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Levitate, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Levitate Subscription Services is not strictly in accordance with this Agreement.

10.2. From Customer. Customer agrees to indemnify, defend, and hold harmless Levitate and its officers, directors, agents, and employees from and against any and all claims, demands, damages, liabilities and costs, incurred by Levitate which directly or indirectly result from, or arise in connection with claims arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property; (b) any material misrepresentation or breach of any representation or warranty set forth in this Agreement; or (c) any grossly negligent act or omission of Customer, its Users, its agents, or employees, pertaining to its activities and obligations under this Agreement.

10.3. Indemnification Procedures.
(a) The Party being indemnified (“Indemnified Party”) will give the Party providing indemnification (“Indemnifying Party”) prompt written notice of any claim for indemnification under this Section 10; provided that the failure or delay in doing so will not excuse the Indemnifying Party of its indemnification obligations except to the extent its ability to defend the claim is materially prejudiced by such failure or delay. The Indemnifying Party shall thereafter have the right to control the investigation, defense, and settlement of the claim at its sole cost and expense provided, however, that the Indemnitee (and Indemnified Party affiliated with the Indemnitee) may, at its own cost and expense, participate, through its attorneys or otherwise, in such defense and/or settlement on a non-controlling basis and shall reasonably cooperate, at the cost of the Indemnifying Party, with the Indemnifying Party in the investigation, trial and defense of such claim and any appeal arising therefrom. The Indemnifying Party shall not enter into any settlement that involves a remedy other than the payment of money by the Indemnifying Party or any Indemnitee without the consent of the Indemnified Party, not to be unreasonably withheld. (b) Notwithstanding Section 10.3(a), in the event of a breach of the warranty in Section 9.1 or a claim for indemnification under Section 10.1(c), Levitate, at its own expense, will promptly take one or more of the following actions, as it sees fit: (a) secure for Customer the right to continue using the Levitate Subscription Services on the terms set forth in the Agreement; (b) replace or modify the Levitate Subscription Services to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Subscription Term left after such termination. This Section 10.3(b) states Levitate’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in Section 9.1 and indemnification under Section 10.1(c) and for potential or actual intellectual property infringement by the Levitate Subscription Services.

11. LIMITATION OF LIABILITY.

11.1. Dollar Cap. LEVITATE’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO LEVITATE FOR THE SERVICES UNDER THE APPLICABLE ORDER FORM IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT LEVITATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. If applicable law limits the application of the provisions of this Section 11.1, Levitate’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Levitate’s liability limits set forth in this Section 11.1 apply likewise to Levitate’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

11.2. Exclusion of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, GOODWILL, COST OF RESTORING OR RECONSTRUCTING DATA, THE COST OF REPLACEMENT GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. Term & Termination.

12.1. Term. The term of this Agreement (the “Term”) shall commence upon the Effective Date and shall continue for so long as any Order Form is in effect. The term of Customer’s subscription shall be for the Subscription Term set forth in the Order Form. Unless otherwise set forth in an Order Form, a Plan shall automatically renew for successive periods of 12 months unless a Party provides the other party with at least 60 days written notice of termination prior to the end of the then-current Subscription Term.

12.2. Termination for Any Reason. Unless such right is expressly set forth in the Order Form, an Order Form may not be terminated by a party without cause.

12.3. Termination for Cause. Either party may terminate this Agreement and any/all Order Forms upon written notice to the other party in the event of: (i) the other party’s material breach which remains uncured after the giving of not less than 30 days written notice setting forth the nature of such breach, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors which is not dismissed within 60 days.

12.4. Effects of Termination. Upon termination of this Agreement and the applicable Order Form(s), Customer’s right to access and use the Levitate Subscription Services shall immediately terminate except a limited right to export or retrieve Customer Data as described herein. Customer shall cease all use of the Levitate Subscription Services and delete, destroy, or return all copies of the Documentation in its possession or control. No termination of this Agreement shall release Customer from any obligation to pay Levitate any amount which has accrued or become payable at or prior to the date of termination or from any obligations that survive termination. Customer may utilize any export utilities included with the Levitate Subscription Services at no additional charge to export Customer Data from the Levitate Subscription Services for a limited period of up to thirty (30) days after expiration or termination of this Agreement. Levitate will delete Customer Data upon Customer’s written request or within ninety (90) days after expiration or termination of the Agreement, whichever occurs first. Upon termination of this Agreement, the provisions specifically providing for survival after termination, together with provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, shall survive termination of this Agreement, including, without limitation those provisions related to ownership, confidentiality, indemnification, and limitations of liability.

13. MISCELLANEOUS.

13.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Levitate employee or contractor will be an employee of Customer.

13.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

13.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

13.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Levitate’s express written consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

13.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

13.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

13.7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Washington, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of King County, Washington. This Section 13.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

13.8. Conflicts. In the event of any conflict between the Agreement or an Order Form, the terms of the Agreement will control unless the Order Form specifically identifies the intent to supersede the Agreement, in which case the Order Form will control solely with respect to the conflicting term. In the event of any conflict between this Agreement and Online Policies, the terms of this Agreement will govern.

13.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

13.10. Technology Export. Customer shall not: (a) permit any third party to access or use the Levitate Subscription Services in violation of any U.S. law or regulation; (b) utilize the Levitate Subscription Services outside of the United States; or (b) ship, export, or re-export any software, or any other information, process, product, or service obtained directly or indirectly from Levitate to any country or entity that is the subject of any prohibition imposed by the U.S. Export Administration Act of 1979, U.S. Executive Orders, the U.S. Department of Commerce, and the North Atlantic Treaty Organization (NATO) or any similar prohibition.

13.11. Publicity. The terms of this Agreement shall be considered Confidential Information of both parties, and neither party shall make information about the products or services described in this Agreement public, except that Levitate may disclose the existence of a relationship between the Parties in its marketing materials (including use of Customer name, logos and trademarks on Levitate’s publicly available information describing Levitate’s customer lists, promotional material, advertising, and website). After the Effective Date, either Party may issue, upon mutual written consent by the Parties, and with contents mutually agreed by the Parties, a press release announcing the existence of a relationship between the Parties under this Agreement.

13.12. Entire Agreement. The Order Form together with this Agreement and any other terms and conditions incorporated into this Agreement by reference constitutes the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications. No additional or different terms set forth in any purchase order, invoice, or instrument issued by a Party in connection with this Agreement will be binding upon the other Party except to the extent expressly acknowledged by the Parties in writing. Levitate’s clicking any buttons or any similar action, such as clicking “I Agree” or “Confirm,” to utilize Customer’s software or webpage for the placement of orders, is NOT an agreement to Customer’s terms and conditions. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF LEVITATE HAS THE AUTHORITY TO BIND LEVITATE BY THE ACT OF CLICKING ANY BUTTON OR SIMILAR ACTION ON CUSTOMER’S WEBSITE OR PORTAL. Levitate’s acceptance of Customer’s purchase order does not constitute Levitate’s acceptance of Customer’s purchase order terms and conditions.

13.13. Modifications. Customer acknowledges and agrees that Levitate has the right, in its sole discretion, to modify these terms from time to time, and that modified terms become effective on posting. Customer will be notified of modifications through direct email communication from us. Customer is responsible for reviewing and becoming familiar with any modifications. Customer’s continued use of the Levitate Subscription Services after the effective date of the modifications will be deemed acceptance of the modified terms.