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MEMVERGE END USER LICENSE AGREEMENT

This MemVerge License 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: UNLESS YOU AS THE LICENSEE HAVE ANOTHER VALID AGREEMENT WITH MEMVERGE APPLICABLE TO THIS SOFTWARE, 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. ADDITIONAL TERMS, INCLUDING THOSE REGARDING LICENSE FEES, TERM, AND THE NUMBER OF LICENSED GPUS, HAVE BEEN AGREED TO BY THE PARTIES AND THOSE ADDITIONAL TERMS ARE A PART OF THIS LICENSE.

1.Definitions

  • 1.1 “Documentation” means the technical and functional documentation relating to the Software, as may be amended from time to time by MemVerge.
  • 1.2 “Intellectual Property Rights” means copyrights, patents, trademarks, service marks, design rights, trade secrets, and other intellectual property rights worldwide.
  • 1.3 “Licensed GPUs” means the maximum number of Graphics Processing Units (GPUs), whether physical or virtualized, for which Licensee is authorized to use the Software concurrently or have the Software manage/utilize, as specified and quantified in the applicable ordering document. Unless otherwise specified in the ordering document (e.g., for a Site License), this number represents the aggregate total allowed GPUs across all authorized Cluster Environments.
  • 1.3 “Nodes” means the physical or virtual machines within Licensee's Kubernetes cluster(s) (the “Cluster Environment(s)”) on which the Software (or components thereof) is installed, operated, or manages resources, and which meet any technical or compatibility requirements provided by MemVerge. The specific Cluster Environment(s) authorized for use under this Agreement are those designated or encompassed by the scope defined in the applicable ordering document.
  • 1.4 “Software” means the MemVerge AI platform software, including any specific modules, agents, controllers, or components provided by MemVerge, designed for accelerating AI workloads, managing GPU resources within Kubernetes, and facilitating model training/inference pipelines, and any Updates thereto provided by MemVerge under this Agreement.
  • 1.5 “Term” means the period of time that Licensee is authorized to use the Software.
  • 1.6 “Updates” means a subsequent release or version of the Software containing minor functional enhancements, extensions, error corrections or fixes, but does not include any release, option or future product which MemVerge licenses separately or for which MemVerge charges an additional fee. Updates are included as part of maintenance and support services. In the future some Updates may include enhancements made available from third parties. If such third parties require additional license terms, Licensee would have to agree to those terms before utilizing the Update.
  • 1.7 "Site License" means a license grant, described in an applicable ordering document, permitting use of the Software across a broader defined scope (such as multiple specified locations, business units, or an entire legal entity) subject to specific terms and limitations (which may include an aggregate GPU cap or other metrics) as explicitly defined in such ordering document.

2. License

  • 2.1 Grant of License. Subject to the terms and conditions of this Agreement, any additional terms agreed to (including the scope defined in the applicable ordering document) and payment of the license fee charged for use of the Software, MemVerge hereby grants to Licensee a non-exclusive, non-transferable and non- sublicensable license during the Term (i) to use, to perform and display the Software on Nodes within the authorized Cluster Environment(s) up to the maximum number of Licensed GPUs, or as otherwise specified for a Site License in the applicable ordering document, in object code form only and for Licensee’s internal business purposes; and (ii) to make one copy of the Software in object code form only and solely for use in a non-production or testing environment and solely for Licensee’s internal business purposes. Licensee shall not copy the Software except to make a reasonable number of copies for the purposes of security back-up or disaster recovery. Whenever Licensee is permitted to copy or reproduce all or any part of the Software, Licensee shall reproduce all titles, trademark symbols, copyright symbols and legends, and other proprietary markings.
  • 2.2 Restrictions. Licensee shall use the Software only on the Nodes within the licensed Cluster Environment unless otherwise stated in this Agreement. Licensee shall not transfer, sell, license, sublicense, outsource, rent or lease the Software or use the Software for service bureau or other third-party use. Licensee shall not make or permit the making of any modifications, additions or enhancements to the Software, or cause or permit the disassembly, decompilation or reverse engineering of the Software in whole or in part, except where such restriction is prohibited by applicable law. Furthermore, Licensee shall not use the Software for any purpose prohibited by applicable law, including but not limited to the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons, or for any activity that promotes illegal acts, violates the rights of others, or generates or disseminates harmful, infringing, or unlawful material. Licensee may be subject to additional usage restrictions as outlined in a separate Acceptable Use Policy (AUP) provided by MemVerge, which is incorporated herein by reference. Licensee warrants that it possesses all necessary rights and consents for any data processed, stored, or used in conjunction with the Software.
  • 2.3 Audit. MemVerge and/or its designated agent may audit Licensee’s use of the Software across all authorized Cluster Environments or within the scope defined by any applicable Site License, upon reasonable notice to Licensee, for purposes of ensuring compliance with this Agreement, including verification of the number of Licensed GPUs in use or managed by the Software. Such audit may involve accessing relevant system logs or utilizing tools integrated within the Software or Kubernetes environment designed for license compliance reporting. Any such audit shall be conducted during regular business hours, not more than once per year (unless a previous audit revealed an underpayment or non-compliance, in which case MemVerge and/or its designated agent may perform another audit within the same year) and shall not unreasonably interfere with Licensee's business activities. If an audit reveals that Licensee has exceeded the scope of its license (e.g., Licensee's aggregate usage across authorized Cluster Environments exceeds the authorized number of Licensed GPUs, usage within a specific cluster exceeds its per-cluster limit (if applicable), or usage otherwise violates the terms of an applicable Site License, collectively “Licensed Usage”), (i) Licensee shall pay for any such excess use over the Licensed Usage at MemVerge's then-current list price, together with interest thereon at a rate of 1.5% per month, or the highest rate allowed by law, whichever is less, calculated from the date the excess usage began; and (ii) if Licensee has exceeded the scope of its Licensed Usage by 5% or more, Licensee shall pay the reasonable costs and expenses of such audit.
  • 2.4 Reservation of Rights. Licensee acknowledges and accepts that, as between the parties, all right, title and interest in and to the Software and all Intellectual Property Rights associated with and in the Software shall at all times remain vested in MemVerge and its licensors, and Licensee shall acquire no rights, express or implied, in the Software, other than the license granted in this Agreement. Licensee shall not remove or alter any Intellectual Property Right or proprietary notice, title, trademark symbols, copyright symbols and legends and other proprietary marks on the Software or on any related material. Licensee agrees that MemVerge retains ownership of the underlying Software platform and any pre-existing models or algorithms provided as part of the Software; Licensee retains ownership of its data and any new AI models specifically trained by Licensee using its data on the platform, subject to MemVerge's underlying rights in the platform components used to create such models.
  • 2.5 Maintenance and Support. Subject to Licensee’s payment of applicable maintenance and support fees, MemVerge shall provide maintenance and support services for the Software according to the MemVerge Support Offerings which shall be included as part of the purchase of the Software.

3. Open Source Software

Licensee agrees that any software or materials which may be made available by MemVerge, or otherwise obtained or used by Licensee, subject to an open source license or other open source terms (“Open Source Software”) shall be and shall remain subject to the terms and conditions of the original providers and are not part of the Software licensed hereunder (unless explicitly stated otherwise in the Documentation). Licensee shall not use or combine the Open Source Software with the Software or other items in any manner that would subject the Software source code to be made available under open source terms and conditions.

4. Warranty.

  • 4.1 Limited Warranty. MemVerge warrants to Licensee that the Software and Open Source Software will operate in substantial conformance with the Documentation for a period of 90 days after receipt of the original Software. MemVerge’s entire liability and Licensee’s exclusive remedy under this warranty shall be, at MemVerge’s option, either (a) repair or replacement of the defective Software that does not meet MemVerge’s limited warranty and that is returned to MemVerge with a copy of Licensee’s receipt or sufficient proof of purchase, or (b) termination of the license for the defective Software and refund of the license fees paid for that specific Software prorated over a three-year period from the date of initial delivery. Notwithstanding the foregoing, if MemVerge is unable to repair or replace defective Software during the 90-day warranty period, MemVerge may, at its sole option, terminate this Agreement and refund the amounts received from Licensee. This limited warranty is void if failure of the Software has resulted from accident, abuse, misapplication, or use with incompatible hardware or software not specified in the Documentation. Any replacements will be warranted for the remainder of the original warranty period or 30 days, whichever is longer.
  • 4.2 Disclaimer; Limitation of Liability.
  • 4.2.1 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1 ABOVE, MEMVERGE MAKES NO WARRANTIES WHETHER EXPRESS OR IMPLIED AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO ANY SOFTWARE, SERVICES OR PROFESSIONAL SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. MEMVERGE DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY OUTPUTS, PREDICTIONS, OR RESULTS GENERATED BY OR THROUGH THE USE OF THE SOFTWARE (INCLUDING ANY AI-DRIVEN FUNCTIONALITY) WILL BE ACCURATE, COMPLETE, RELIABLE, SECURE, OR FIT FOR LICENSEE’S PURPOSES. LICENSEE ACKNOWLEDGES THAT AI SYSTEMS MAY PRODUCE UNEXPECTED OR BIASED OUTPUTS AND THAT LICENSEE IS SOLELY RESPONSIBLE FOR EVALUATING THE SUITABILITY AND ACCURACY OF ANY RESULTS OBTAINED FROM THE SOFTWARE FOR ITS INTENDED USE.
  • 4.2.2 EXCEPT FOR EITHER PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS OF SECTION 7, OR LICENSEE'S OBLIGATIONS UNDER SECTION 5.3, (I) IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE SERVICES, PROFESSIONAL SERVICES, OR THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (II) EXCEPT FOR MEMVERGE'S OBLIGATIONS UNDER SECTION 5.1 AND LICENSEE'S OBLIGATIONS UNDER SECTION 5.3, MEMVERGE’S ENTIRE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO MEMVERGE BY LICENSEE FOR THE SPECIFIC SOFTWARE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.

5. Indemnification.

  • 5.1 MemVerge’s Indemnification. MemVerge shall defend, or at its option settle, any third party claim or action brought against Licensee that the Software infringes upon or misappropriates any United States copyright or trade secret of any third party or any patent of a third party issued under the laws of the United States as of the Effective Date, and shall pay any final judgments awarded or settlements entered into; provided that: (i) Licensee promptly notifies MemVerge in writing of the claim; (ii) MemVerge shall have the sole control of the defense and all related settlement negotiations; and (iii) Licensee provides MemVerge with reasonable assistance, information and authority as requested. MemVerge shall have no liability hereunder if the actual or alleged infringement results from (a) Licensee’s breach of this Agreement, (b) any modification, alteration or addition made to the Software or any use thereof that causes either to deviate from the Documentation, © Licensee’s failure to use any corrections or modifications made available by MemVerge that would not result in any material loss of functionality, (d) use of the Software in combination with non-MemVerge software, data, or equipment if the infringement would have been avoided but for such combination, or (e) use of the Software in a manner or in connection with a product or data not contemplated by this Agreement or the Documentation.
  • 5.2 Remedies. If the Software is held or likely to be held infringing, MemVerge shall have the option, at its own expense, to (i) modify the same such that it no longer infringes or misappropriates; (ii) obtain a license for Licensee to continue using the same; (iii) replace the same with functionally equivalent software; or (iv) if none of the foregoing is commercially practical, terminate this Agreement with respect to the infringing Software and refund a pro rata portion of license fees actually received by MemVerge from Licensee’s license of the applicable Software as amortized over a 3 year period. THE REMEDIES SET FORTH HEREIN SHALL CONSTITUTE MEMVERGE’S SOLE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION ADDRESSED IN SECTION 5.1.
  • 5.3 Licensee Indemnification. Licensee shall defend, indemnify, and hold harmless MemVerge, its affiliates, officers, directors, employees, and agents from and against any and all third-party claims, actions, suits, proceedings, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to: (i) any data, content, or materials inputted, processed, stored, or used by Licensee or its users in connection with the Software, including but not limited to claims that such data infringes intellectual property rights, violates privacy rights, or is defamatory, illegal, or harmful; (ii) Licensee's use of the Software in violation of this Agreement, the Documentation, any applicable Acceptable Use Policy, or applicable law; (iii) any AI models developed, trained, deployed, or used by Licensee using the Software, including claims related to the outputs or decisions of such models; or (iv) Licensee's breach of its representations or warranties under this Agreement. MemVerge will provide prompt written notice of any such claim, give Licensee sole control of the defense and settlement (provided Licensee may not settle any claim in a manner that admits liability or imposes obligations on MemVerge without MemVerge's prior written consent), and provide reasonable assistance in the defense thereof at Licensee's expense.

6. Termination

  • 6.1 Term. This Agreement will commence on the Effective Date and continue for the period of time Licensee is authorized to use the Software (as specified in the applicable ordering document), unless otherwise terminated in accordance with this Section 6.
  • 6.2 Termination. Either party may terminate this Agreement upon written notice if (i) a receiver is appointed for the other party or its assets; (ii) the other party makes a general assignment for the benefit of its creditors; (iii) the other party commences or has commenced against it, proceedings under any bankruptcy, insolvency, or debtor’s relief law, which proceedings are not dismissed within 60 days; (iv) the other party is liquidated or dissolved, other than in a corporate reorganization in which the ongoing business of such liquidated or dissolved party shall be continued by substantially the same ownership and management as existed prior to such liquidation or dissolution; or (v) the other party commits a material breach of this Agreement that is not remedied within 30 days following receipt of written notice thereof from the non-breaching party. MemVerge may also terminate this Agreement immediately upon written notice if Licensee breaches the license grant or restrictions in Section 2.
  • 6.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason, Licensee shall have no further right to use the Software. Licensee shall, within 14 days of the date of termination or expiration, cease all use of the Software and Documentation, and as instructed by MemVerge, either return all copies of the Software and Documentation in its possession or control, or destroy all such copies (including uninstalling all instances from any Nodes, containers, or systems) and certify in writing to MemVerge that it has done so.
  • 6.4 Survival. Sections 1 (Definitions), 2.2 (Restrictions), 2.3 (Audit), 2.4 (Reservation of Rights), 3 (Open Source Software), 4.2 (Disclaimer; Limitation of Liability), 5.3 (Indemnification), 6.3 (Effect of Termination), 6.4 (Survival), 7 (Confidentiality), and 8 (Miscellaneous), and all payment obligations of Licensee accrued prior to termination or expiration shall survive termination or expiration of this Agreement.

7. Confidentiality

  • 7.1 Confidentiality Undertaking. “Confidential Information” means the confidential and proprietary information of the disclosing party (the “Discloser”) which is identified as confidential by the Discloser at the time of disclosure or which the receiving party (the "Recipient") should reasonably understand to be confidential given the nature of the information and circumstances of disclosure. In addition, MemVerge Confidential Information includes but is not limited to the Software (in object and source code form, if applicable) and Documentation, the structure, sequence, and organization of the Software, any benchmark results, performance data, or technical information related to the Software derived by Licensee, any responses to technical support requests, and any business information, technical data, or know-how relating to the Software, any services, or any associated technology or services, including without limitation all such information disclosed in written form. Confidential Information shall not include any information, documentation or data that: (i) was in the possession of the receiving party (the “Recipient”) Recipient at the time of disclosure as shown by the recipient’s files and records in existence prior to the time of disclosure, (ii) prior to or after the time of disclosure becomes publicly known, not as a result of any wrongful action or omission of Recipient; (iii) is developed independently by Recipient without use of or reference to the Discloser’s Confidential Information, as demonstrated by written records, or (iv) is properly acquired by Recipient from a third party having the right to disclose such information without restriction.
  • 7.2 Obligations. Each party shall protect the confidentiality of the other party’s Confidential Information by exercising at least the same standard of care as it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable standard of care, and shall, in any event: (i) hold any Confidential Information of the other party in strict confidence; (ii) not disclose or reveal such Confidential Information to third parties, except to its employees, agents, and subcontractors who have a need to know such information for the purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as those contained herein; (iii) not use such Confidential Information for any purpose except as set forth in this Agreement or as otherwise expressly permitted by the Discloser in writing; and (iv) take all such steps reasonably necessary to ensure compliance with the provisions of this Section 7 by its employees, agents, and subcontractors. Notwithstanding any of the foregoing, each party may disclose Confidential Information of the other party to the extent required to be disclosed pursuant to law, regulation, or court order, provided that it gives the other party reasonable prior written notice of any such required disclosure (to the extent legally permissible) and the opportunity to prevent or limit such disclosure through available legal processes, and reasonably cooperates with the other party's efforts to obtain protective treatment for the information.

8. Miscellaneous.

  • 8.1 Entire Agreement; Construction. This Agreement, together with any applicable ordering documents, referenced policies (like an AUP or Privacy Policy), and any Data Processing Addendum (as applicable), constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes any and all prior or contemporaneous communications, representations, proposals, understandings, and agreements, whether written or oral. This Agreement shall not be amended or modified except in a writing signed by duly authorized representatives of both parties. Section headings are for convenience only and shall not affect interpretation of the relevant section. To the extent that a purchase order, vendor registration form, or like document issued by Licensee contains terms that are different from, inconsistent with, or in addition to this Agreement, such terms are hereby rejected, shall be null and void, and this Agreement shall control over any such different, inconsistent, or additional terms. All notices required or permitted under this Agreement must be in writing and sent to the addresses specified in the preamble (for MemVerge) or provided by Licensee during registration or in an ordering document (for Licensee), and will be deemed delivered: (a) upon personal delivery; (b) the first business day after sending by recognized overnight courier with tracking capabilities; or © the third business day after sending by certified or registered mail, return receipt requested, postage prepaid. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
  • 8.2 No Third Party Beneficiaries. Under no circumstances shall any third party be considered a third party beneficiary under this Agreement or otherwise be entitled to any rights or remedies under this Agreement, except as expressly provided in Section 5 with respect to indemnified parties.
  • 8.3 Export and Import Regulations. Licensee acknowledges that the Software, including technical data, contains cryptographic features and may be subject to United States and local country laws governing import, export, re-export, distribution, and use. The Licensee is responsible for compliance by the Licensee and its users with United States and applicable local country laws and regulations. Licensee represents and warrants that it is not named on any U.S. government denied-party list and shall not export, re-export, use, or transmit the Software (i) in violation of any export control laws or regulations of the United States or any other applicable jurisdiction, or (ii) to any country, entity, or person to which such export, re-export, use, or transmission is restricted by such laws or regulations (including but not limited to sanctioned or embargoed destinations or persons).
  • 8.4 Assignment. This Agreement shall not be assigned or transferred by Licensee, in whole or in part, by operation of law or otherwise, without the prior written consent of MemVerge, which consent shall not be unreasonably withheld or delayed. Any attempted assignment or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, MemVerge may without prior written consent (i) assign this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets to which this Agreement relates, or (ii) assign its rights or delegate its obligations under this Agreement to an affiliate, or (iii) transfer assign all or part of its rights and obligations to provide services under this Agreement. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and permitted assigns.
  • 8.5 Severability. If any provision of this Agreement shall be held illegal, invalid, or unenforceable by a court or tribunal of competent jurisdiction, the parties shall reform the provision to the minimum extent necessary to render it valid and enforceable in conformity with their intent as manifested herein, or if reformation is not possible, it shall be severed. The remainder of the Agreement shall remain in full force and effect.
  • 8.6 Governing Law. This Agreement and any dispute arising out of or in connection with it (including non-contractual disputes) shall be governed by and construed in accordance with the laws of the State of California, United States, without regard to its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California, and the parties hereby irrevocably consent to the personal jurisdiction and exclusive venue therein.
  • 8.7 U.S. Government Restricted Rights. If the Software is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that (i) the Software and accompanying materials constitute “commercial computer software” and “commercial computer software documentation” under paragraphs 252.227.14 and 252.227.7202 of the DoD Supplement to the Federal Acquisition Regulations (“DFARS”) or any successor regulations, and the Government is acquiring only the usage rights specifically granted in this Agreement; (ii) the Software constitutes “restricted computer software” under paragraph 52.227-19 of the Federal Acquisition Regulations (“FAR”) or any successor regulations and the government’s usage rights are defined in this Agreement and the FAR.
  • 8.8 Force Majeure. Neither party shall be liable to the other for delays or failures in performance (other than payment obligations) resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, pandemics, epidemics, or casualties.
  • 8.9 Data Processing. To the extent that MemVerge processes any personal data on behalf of Licensee in connection with the provision of the Software, the terms of the MemVerge Data Processing Addendum (DPA), available at [Insert Link to DPA or state it's attached/provided separately], which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
  • 8.10 Telemetry and Usage Data. Licensee acknowledges that the Software may collect and transmit technical and related information about Licensee’s use of the Software (such as performance statistics, feature usage, system configuration, and GPU utilization for license compliance verification) (“Usage Data”) to MemVerge. MemVerge uses Usage Data to support and improve the Software and related services, and to verify compliance with this Agreement. All Usage Data collected will be handled in accordance with MemVerge’s Privacy Policy, available at https://memverge.com/privacy-policy/. MemVerge will not access or collect Licensee Content (e.g., the specific data processed by the AI models) through this mechanism without separate consent, except as necessary for providing support requested by Licensee.