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MemVerge Product Evaluation Agreement

This MemVerge Evaluation Agreement (the “Agreement”) is a binding contract by and between MemVerge, Inc. (“MemVerge”), a Delaware corporation with a place of business at 1525 McCarthy Blvd., Suite 218, Milpitas, CA 95035, and the individual or entity who downloads, installs or otherwise uses the Software (“Licensee”). The effective date of the Agreement (the “Effective Date”) will be the date that the Licensee downloads, installs or otherwise first uses the Software.

PLEASE READ CAREFULLY: THE FOLLOWING TERMS WILL GOVERN THIS LICENSE. MEMVERGE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING "ACCEPT", LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) IF AN INDIVIDUAL, LICENSEE IS 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) LICENSEE HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, MEMVERGE WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT INSTALL THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF MEMVERGE’S SOFTWARE.

  1. License. Subject to the terms of this Agreement Company grants to Licensee a limited, nonsublicensable, nonexclusive license to use the "MemVerge.ai" product suite and the "Kubernetes Transparent Checkpoint Operator" (the “Software”) in accordance with any documentation or instructions supplied by MemVerge solely for Licensee’s internal testing purposes during the term of this Agreement.

  2. Restrictions. Licensee will not (a) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, decompile, modify, alter, reverse engineer, analyze or create derivative works based on any portion or the whole of the Software; (b) otherwise use the Software or any component thereof on behalf of a third party; © share data or evaluation results with any third party without prior written approval from MemVerge; (d) write or develop any derivative software or any other software program based upon any Software, documentation or any Proprietary Information (as defined herein) provided with the Software; (e) make any alterations, additions or improvements to the Software; or (f) use the Software other than in accordance with the instructions set forth in the documentation or otherwise provided by MemVerge.

  3. Ownership. Licensee acknowledges that, between Licensee and MemVerge, MemVerge owns, and shall continue to own, full right, title and interest in and to the Software, including without limitation, all intellectual property rights in the Software. Licensee hereby assigns to MemVerge all right, title, and interest in and to any inventions, ideas, information, feedback or know-how that is conceived, learned or reduced to practice in connection with the Software hereunder. MemVerge may collect data with respect to the use and performance of the Software, and freely use and exploit such data (in an aggregate manner that does not personally identify Licensee).

  4. Confidentiality; Ownership. Licensee acknowledges that, in the course of using the Software and performing its duties under this Agreement, it may obtain information relating to the Software and/or MemVerge (“Proprietary Information”). Such Proprietary Information shall belong solely to MemVerge and includes, but is not limited to, the existence of the Software, its features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. In regard to this Proprietary Information, during the term of this Agreement and after its termination: (a) Licensee shall not use (except as expressly authorized by this Agreement) or disclose Proprietary Information without the prior written consent of MemVerge unless such Proprietary Information becomes part of the public domain without breach of this Agreement by Licensee, its officers, directors, employees or agents; (b) Licensee agrees to take all reasonable measures to maintain the Proprietary Information and Software in confidence; and © Licensee will disclose the Software and Proprietary Information only to those of its employees as are necessary for the use expressly and unambiguously licensed hereunder; Licensee is responsible for any noncompliance of this Agreement by its employees. Licensee shall not, without the prior written consent of MemVerge, disclose or otherwise make available the Software or copies thereof to any third party.

  5. Warranty Disclaimer; Warning.

The parties acknowledge that the Software is experimental in nature and that the Software is provided “AS IS” and may not be functional on any machine or in any environment. MEMVERGE DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

WARNING: THE EVALUATION COPY OF THE SOFTWARE CONTAINS A ROUTINE THAT WILL CAUSE THE SOFTWARE TO CEASE PROPER FUNCTIONING AFTER A CERTAIN PERIOD OF TIME. THIS MAY OCCUR BEFORE OR AFTER TERMINATION OF THE LICENSE, SO LICENSEE MUST BE PREPARED FOR SUCH EVENT AT ALL TIMES AND MAY NOT RELY ON THE SOFTWARE.

  1. Limitation of Remedies and Damages.

MEMVERGE SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. MEMVERGE SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

  1. Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

  2. This Agreement may be terminated by MemVerge for any reason or no reason upon fifteen (15) days’ written notice to the Licensee at the address listed above, or immediately upon notice of any breach by Licensee of the provisions of this Agreement, and in any case will terminate sixty (60) days following the Effective Date. Upon termination, the license granted hereunder will terminate and Licensee shall immediately uninstall and the Software and destroy any Proprietary Information, but the terms of this Agreement will otherwise remain in effect.

  3. Miscellaneous. This Agreement shall become effective only upon its execution by both MemVerge and Licensee and it shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions therein. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Although fully assignable and transferable by MemVerge, neither the rights nor the obligations arising under this Agreement are assignable or transferable by Licensee, and any such attempted assignment or transfer shall be void and without effect. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Any modifications of this Agreement must be in writing and signed by both parties. Licensee acknowledges and agrees that due to the unique nature of MemVerge’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Licensee or third parties to unfairly compete with MemVerge resulting in irreparable harm to MemVerge, and therefore, that upon any such breach or threat thereof, MemVerge shall be entitled to injunctions and other appropriate equitable relief without posting a bond in addition to whatever remedies it may have at law. No click-through, shrink-wrap, or similar terms of use apply with respect to the subject matter of this Agreement, whether clicked through, assented to, or otherwise entered into by any individual before, on, or after the Effective Date.