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This End-User License Agreement (this "Agreement") is between the individual or entity accepting it (the "End User" or "you") and Elm Computing ("Company"), and governs your acquisition of Company's product or services provided via Alibaba Cloud International Marketplace Platform  (currently located at the URL: https://marketplace.alibabacloud.com/ ) and described in the Order Form (the "Company Products and/or Services") and your use of such Company Products and/or Services.

Please read this Agreement carefully before downloading, installing, or using the Company Products and/or Services. By downloading, installing, or using the Company Products and/or Services, you are agreeing to be bound by the terms and conditions of this Agreement. This Agreement, together with the Order Form, represents the entire agreement concerning the Company Products and/or Services between you and Company and supersedes any prior understanding or agreement between the parties. If you do not agree to the terms of this Agreement, do not download, install, or use the Company Products and/or Services. You shall inform all users of the Company Products and/or Services of the terms and conditions of this Agreement. You agree that all updates, enhancements, maintenance releases, patches, bug-fixes or other modifications to the Company Products and/or Services provided to you, on a when and if available basis, shall be governed by the terms and conditions contained in this Agreement.

Any pre-printed terms or conditions on a quote, purchase order, or similar document and/or written agreement, mutually executed by the parties, that incorporates by reference this Agreement ("Order Form") that conflict with this Agreement shall be null and void. This Agreement may be superseded only by a mutually signed amendment to this Agreement.

1. Licenses
   1. Grant of License. Subject to the terms and conditions of this Agreement, Company grants to End User a time-based, non-transferable, nonexclusive license during the Term, without the right to sublicense, to: a) use the Company Products and/or Services during the Term and subject to payment of the fees set forth in the Order Form; and b) use any Documentation solely in connection with the use of the Company Products and/or Services in accordance with this Agreement and make a reasonable number of copies of the Documentation for such purpose. "Documentation" means: (i) Company's user guide for the Company Products and/or Services, and (ii) Company's written specification documents for the Company Products and/or Services.

Except as expressly set forth in this Section 1.1, End User shall have no right to use, install, reproduce or distribute the Company Products and/or Services or Documentation.

1. License Restrictions. Other than as expressly set forth herein, End User shall have no right to (i) modify or otherwise prepare derivative works of the Company Products and/or Services or Documentation, or any portion thereof, (ii) rent, lease, loan, sublicense, sell or otherwise distribute the Company Products and/or Services or Documentation, (iii) except as expressly permitted by applicable law, reverse engineer or decompile the Company Products and/or Services, or otherwise attempt to derive or modify the source code of, or any processes, techniques, methods, specifications, protocols, algorithms, interfaces, data structures, or other information embodied or used in, the Company Products and/or Services; (iv) transfer or assign your rights to use the Company Products and/or Services; (v) use the Company Products and/or Services in violation of applicable laws or regulations; (vi) use the Company Products and/or Services for any purpose other than as permitted in this Agreement; or, (vii) remove, destroy, erase, alter or otherwise modify Company’s trademarks.  
2. Open-Source Software Licenses. End User acknowledges that portions of the Company Products and/or Services are subject to additional licenses that you shall be obligated to obtain separately from this Agreement.
3. End User Data.  "End User Data" means all of End User's information and data, including any software applications, application data, and other information, transferred to Company in connection with the use of the Company Products and/or Services. You represent and warrant that you own or have the right to use all End User Data that you provide to Company in connection with the use of the Company Products and/or Services. You hereby grant to Company a license to use any End User Data that you provide to Company in connection with the use of the Company Products and/or Services solely for the purposes of providing the services as set forth in this Agreement. 

1. Warranty
   1. Warranty. Company warrants to End User that during the Term, the Company Products and/or Services will be free of Errors. Company's sole obligation for a breach of this warranty will be to use its commercially reasonable efforts to correct the Error identified in such notice, provided that if Company is unable to correct any emergency Error or high severity Error within thirty (30) days of receiving notice from End User reporting such Error, End User will have the right to terminate this Agreement, the Order Form, any Company's then-current support terms that govern Support Services, as set forth, if applicable, in the Order Form or other separate agreement ("Support Terms") and all other exhibits and amendments executed by the parties and attached to the Order Form for a refund of a pro-rated portion of any services fees and support and maintenance fees actually paid by End User for the remainder of the then-current Term. "Error" means a material failure of the Company Products and/or Services to operate in accordance with the functional specifications for the Company Products and/or Services set forth in the applicable Documentation.
   2. Limitations. Notwithstanding the foregoing, the warranty in Section 2.1 and Company's obligations set forth in Section 2.1 will not apply: (i) to the extent that an Error is due to causes that are external to the Company Products and/or Services or otherwise beyond Company's reasonable control, including, without limitation, natural disasters, fire, smoke, water, earthquakes, lightening, electrical power fluctuations or failures, or hardware or software not provided by Company; (ii) if the Company Products and/or Services has been misused and/or not used in compliance with the Documentation or this Agreement; (iii) if there has been a modification or attempted modification of the Company Products and/or Services other than by Company; or (iv) if End User has refused or otherwise failed to implement corrections, updates, enhancements, new releases or other modifications provided by Company.
   3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 2.1, COMPANY MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE COMPANY PRODUCTS AND/OR SERVICES, THE DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY COMPANY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR DELAYS OR INTERRUPTION IN SERVICE RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS SERVICES NOT UNDER THE CONTROL OF COMPANY. THE COMPANY PRODUCTS AND/OR SERVICES ARE NOT WARRANTED TO OPERATE WITHOUT INTERRUPTION OR FAILURE. THE COMPANY PRODUCTS AND/OR SERVICES SHOULD ONLY BE USED IN SYSTEMS DESIGNED WITH APPROPRIATE REDUNDANCY, FAULT TOLERANCE AND BACK-UP FEATURES.
2. Support. Company provides paid support and maintenance services purchased separately from this Agreement in connection with the Company Products and/or Services ("Support Services") pursuant to the Support Terms, for the period set forth in the Order Form and commencing on the date set forth in the Order Form.
3. Limitations of Liability
   1. Maximum Liability. To the maximum extent enforceable under applicable law, other than for payment of license and service fees pursuant to this Agreement, the entire liability of each party hereto and their respective affiliates to the other party and its affiliates for damages or other amounts arising out of or in connection with the Company Products and/or Services, the Documentation, any other products or services provided by Company, the use of any of the foregoing or any other aspect of this Agreement shall not exceed the total amount actually paid by End User for the Company Products and/or Services and any other products and services provided under this Agreement in the twelve (12) month period immediately preceding the event giving rise to such claim.
   2. Waiver of Consequential Damages. TO THE MAXIMUM EXTENT ENFORCEABLE IN ACCORDANCE WITH APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, OR ANY DAMAGES FOR LOST PROFITS OR REVENUE, LOST DATA OR LOST BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
   3. Loss of Use or Data. IN ADDITION TO THE LIABILITY LIMITATIONS SET FORTH ABOVE, TO THE MAXIMUM EXTENT ENFORCEABLE IN ACCORDANCE WITH APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS AFFILIATES BE LIABLE TO END USER, ANY RESELLER, THEIR RESPECTIVE AFFILIATES OR ANY OTHER PERSON OR ENTITY FOR ANY CLAIM, LOSS OR LIABILITY FOR INTERRUPTION IN THE OPERATION OF THE COMPANY PRODUCTS AND/OR SERVICES OR FOR ANY LOSS OF DATA THAT OCCURS AS A RESULT OF OR IN CONNECTION WITH THE USE OF THE COMPANY PRODUCTS AND/OR SERVICES, REGARDLESS OF WHETHER SUCH CLAIM, LOSS OR LIABILITY WAS FORESEEABLE BY COMPANY OR COMPANY WAS INFORMED OF THE POSSIBILITY OF SUCH CLAIM, LOSS OR LIABILITY.
   4. Disclaimers. THE LIMITATIONS IN THIS SECTION 4 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE PARTIES ACKNOWLEDGE THAT BUT FOR THE FOREGOING DISCLAIMER, THE FEES CHARGED FOR THE COMPANY PRODUCTS AND/OR SERVICES WOULD BE HIGHER AND COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES, SO A PORTION OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO END USER. IN THE EVENT THAT IMPLIED WARRANTIES CANNOT BE EXCLUDED, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE COMPANY PRODUCTS AND/OR SERVICES. THIS AGREEMENT GIVES END USER SPECIFIC LEGAL RIGHTS. END USER MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
4. Third-Party Rights
   1. Indemnification by Company. Subject to this Section 5, Company shall (i) defend End User from any claim asserted in a legal proceeding by a third party alleging that the then-current release of the Company Products and/or Services, in the form provided by Company to End User and used in compliance with Section 1 and the Documentation, infringes such third party's copyright, trade secret, patent or other intellectual property rights (a "Claim") and (ii) pay all liabilities, damages, losses, expenses, claims, demands, suits, fines, and judgments finally awarded against End User associated with such Claim ("Damages"), or any amount agreed to by Company in settlement of such Claim ("Settlement Payments"); provided that End User promptly notifies Company of any such Claim in writing, Company is given sole and exclusive control over the defense and settlement of such Claim, and End User provides all information and cooperation reasonably requested by Company in connection with the defense and settlement of such Claim. If Company assumes defense of the Claim, End User may retain its own counsel only at its own expense.
   2. Fixes. If any portion of the Company Products and/or Services becomes, or in Company's opinion is likely to become, the subject of a claim of infringement, Company may, at its option, (i) procure for End User the right to continue using the Company Products and/or Services, (ii) replace or modify the Company Products and/or Services to make it non-infringing or reduce the likelihood of infringement, such that the replacement or modification provides substantially the functionality required of the Company Products and/or Services that is replaced or modified, or (iii) terminate this Agreement and, as Company's sole liability and End User's sole remedy for such termination, refund to End User a pro-rated portion of any license fees and support and maintenance fees actually paid by End User hereunder for the remainder of the then-current term or scope of the license.
   3. Indemnification by End User. End User will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that End User Date or End User's use of the Company Products and/or Services in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "Claim Against Company"), and will indemnify Company from any damages, attorney fees and costs awarded against Company as a result of, or for any amounts paid by Company in settlement of, a Claim Against Company, provided Company promptly notifies you of any such Claim Against Company in writing, End User is given sole and exclusive control over the defense and settlement of such Claim Against Company, and Company provides all information and cooperation reasonably requested by you in connection with the defense and settlement of such Claim Against Company. If End User assumes defense of the Claim, Company may retain its own counsel only at its own expense.
   4. Limitations. Notwithstanding any of the foregoing, Company shall have no obligations under this Section 5 with respect to any Claim to the extent that the alleged infringement is based on or arises out of: (i) any third-party hardware, software, data or other materials not provided or recommended by Company and used with the Company Products and/or Services; (ii) use of the Company Products and/or Services other than in accordance with this Agreement and the Documentation; (iii) modifications or additions to the Company Products and/or Services not made by Company; or (iv) End User's continuation of an allegedly infringing activity after being notified thereof.
   5. No Other Liabilities. This Section 5 states the entire liability of Company with respect to any claims of infringement or misappropriation of intellectual property rights.
5. Proprietary Rights

End User acknowledges that, other than open source software, Company has retained and shall retain all right, title and interest (including, without limitation, all intellectual property rights) in and to the Company Products and/or Services and Documentation, including all modifications, improvements and additions thereto and all derivative rights therein.

End User acknowledges that Company shall remain exclusive owner of any and all developments and designs made in the course of this Agreement by use of the Company Products and/or Services, and Company shall own and retain all right, title, interest, and any intellectual property rights attached thereto.

End User grants to Company a worldwide, limited-term license to host, copy, and transmit End User Data, and any non-Company applications and programs provided by you, as necessary for Company to provide the Company Products and/or Services and or support service in accordance with this Agreement. Subject to the foregoing limited license, Company acquires no right, title or interest from you under this Agreement in or to End User Data.

1. Confidentiality

"Information" means, subject to the exceptions set forth in Section 7.3 below, all financial and technical information, data, designs, specifications, know-how, non-public marketing strategies, business and marketing plans, price lists, inventions, processes, software programs, firmware, source code, algorithms, and other technical and business information and all documents and materials, supplied in connection with this Agreement or the Company Products and/or Services, which at the time of disclosure is designated as confidential (or similar designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential.

1. Company Information. Except as otherwise expressly provided in this Section 7.1, End User shall protect and keep confidential all Company Information. End User shall use Company Information only for the purposes contemplated by this Agreement. End User may disclose Company Information only (i) as necessary for its use of the Company Products and/or Services in accordance with this Agreement, (ii) to End User's employees or third-party contractors who have agreed in writing to maintain such information in confidence; or (iii) if required to do so by subpoena, court order or legal process, provided that Company is provided sufficient written notice to request a protective order.
2. End User Information. Right to Disclose. Except as otherwise expressly provided in this Section 7.2, Company shall protect and keep confidential all End User Information and shall use End User Information only for the purposes contemplated in this Agreement and for purposes of improving and enhancing the Company Products and/or Services. Company may disclose End User Information only (i) as necessary to support End User's use of the Company Products and/or Services in accordance with this Agreement, (ii) to Company's employees or third-party contractors who have agreed in writing to maintain such information in confidence; or (iii) if required to do so by subpoena, court order or legal process, provided that End User is provided sufficient written notice to request a protective order.
3. Exceptions. Sections 7.1 and 7.2 shall not apply to Information of the disclosing party that (i) is or becomes generally available to the public other than through a wrongful act of the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a source that is entitled to disclose it to the receiving party; or (iii) is independently developed by the receiving party, its employees or third-party contractors without access to or use of the disclosing party's Information
4. Company Products and/or Services; Documentation. End User acknowledges that the Company Products and/or Services and Documentation constitute Company Information.
5. Data Processing. In respect of any personal data processed by Company in connection with the provision of the Company Products and/or Services, both parties shall comply with the provisions of Schedule 1 Data Processing Addendum, which are hereby incorporated by reference into this Agreement.

1. Duration, Termination and Fees
   1. Duration. "Term" shall commence on the earlier of the date this Agreement is accepted by End User or the start date set forth in the Order Form, and shall continue for the term set forth in the Order Form or for as long as you use the Company Products and/or Services. Company shall provide the services and the license rights granted herein for the Term. End User and Company may extend or renew the services upon written agreement.
   2. Fees & Charges. End User shall pay all license fees, service fees and other charges set forth in an Order Form according to the terms of the Order Form and this Agreement. Any failure to pay such fees and charges shall constitute a material breach of this Agreement.
   3. Termination for Breach. Either party shall be entitled to terminate this Agreement in the event the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of being notified in writing of such breach.
   4. Discontinued Use. Upon any expiration or termination of this Agreement or the Order Form, End User shall immediately (i) discontinue use of the Company Products and/or Services and Documentation and (ii) remove, delete and otherwise destroy all copies (electronic or otherwise) of the Company Products and/or Services and Documentation.
   5. Effect of Termination. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party's obligations under this Agreement.
   6. Survival. Upon any expiration or termination of this Agreement, the rights and obligations of the parties shall terminate, except that Sections 1.2, 2.3, 4, 5, 6, 7, 8.4 and 9 shall survive such expiration or termination. End User's liability and obligation to pay any fees or other amounts that have accrued prior to such expiration or termination will also survive such expiration or termination.
2. Miscellaneous
   1. Governing Law and Jurisdiction. This Agreement will be governed by the laws of Singapore without regard to any rules governing conflicts of laws. The parties agree that any dispute or claim arising out of, in connection with or relating to this Agreement shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with its arbitration rules for the time being in force.
   2. Acknowledgement. Both parties acknowledge that the Company Products and/or Services on Alibaba Cloud International Website are provided and uploaded by the Company itself, and the Company is solely and fully responsible and liable for such Company Products and/or Services. Furthermore, the parties acknowledge that Alibaba Cloud International Marketplace Platform and its owner: (i) have no access to Information and End User Data; (ii) will not process any Information or End User Data; and (iii) are not liable to the parties, either directly or indirectly, with respect to the Company Products and/or Services.