MemComputing, Inc. Software-as-a-Service Evaluation Terms and Conditions

These MemComputing, Inc. Software-as-a-Service Evaluation Terms and Conditions (“SaaS Terms and Conditions”) apply to the legal agreement formed between MemComputing, Inc. (“Provider”) and the customer executing an Order Form that is accompanied by or references this document (“Customer”).  Each of Provider and Customer are referred to herein as a “Party” and collectively as the “Parties”.

1. DEFINITIONS.  As used in this Agreement:

“Agreement” means the agreement between Customer and Provider consisting of these SaaS Terms and Conditions, any Order Form signed by Customer and Provider that accompanies or references this document, and any Statements of Work entered into by Customer and Provider hereunder.

“Applicable Laws” means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state or national) that are applicable to or enforceable against either Party or any of its affiliates, or the personnel of any of the foregoing, in relation to their activities under or pursuant to this Agreement.

“Authorized User” means any end user of Customer who has completed Provider’s online registration process or who otherwise received a user ID or other access credentials from Provider or Customer authorizing such end user to access and use the SaaS.

“Authorized Purpose” means any purpose set forth in an Order Form describing the purpose for which the applicable SaaS and associated Content are permitted to be used by Customer, and their respective Authorized Users.  If no purpose is stated in an Order Form, the Authorized Purpose shall be limited to use of the SaaS for evaluation purposes only. 

“Claim” and “Claims” have the meanings given in Section 5.3.

“Content” means any data, media, information and/or other type or form of content displayed, distributed or otherwise made available to a Party through or in connection with the access to and use of the SaaS or any other Services, including Customer Data and Provider Content.

“Customer Data” means any data that is submitted by or on behalf of Customer for processing, transmission, and/or storage through the SaaS.

“Data Privacy and Security Laws” means all applicable federal, state, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, of or by any United States federal or state government entity, or any authority, department or agency thereof governing the privacy, data protection and security of personally identifiable information and security breach notification relating to personally identifiable information, and any other laws in force in any jurisdiction (regulatory or otherwise) in which the SaaS is being utilized.

“Fees” means those fees payable by Customer to Provider for access to and use of the SaaS and certain associated Services, as set forth in the relevant Order Form, which shall be payable in accordance with the payment terms set forth in the Order Form. Unless and except as otherwise stated in this Agreement, all Fees are non-cancellable and non-refundable.

“Intellectual Property Rights” means the legal rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the rights to exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications.  Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including privacy rights and any rights in databases recognized by applicable law.

“Losses” means, in connection with a Claim that is subject to defense and indemnification by a Party under this Agreement, all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including associated taxes, interest and penalties.

“Order Form” means an order form issued by Provider and executed by Customer and Provider, setting forth the necessary information relating to the access to and use of the SaaS and any other Services to be provided to Customer under this Agreement and the fees payable to Provider.

“Professional Services” means any professional services performed or contracted to be performed by Provider pursuant to a Statement of Work entered into by the Parties under this Agreement.

“Provider Content” means any Content originated or controlled by Provider that is made accessible to Customer via the access to and use of the SaaS or any other Services, including without limitation all results generated by the evaluation of the SaaS.

“Provider’s Website” means the web interface that Provider offers for interaction with and receipt of the SaaS.

“SaaS” means Provider’s proprietary web-based software-as-a-service platform and related tools made available for access and use by Customer and its Authorized Users under this Agreement, as identified on the applicable Order Form, including associated components, such as Provider’s Website and related documentation.

“Services” means, collectively, the access to and use of the SaaS, the Support Services, and any Professional Services performed or provided by Provider pursuant to this Agreement.

“Statement of Work” (or “SOW”) means a supplementary document in a mutually agreed form that is entered into by the Parties under this Agreement and describes Professional Services ordered by Customer from Provider (if any).  Upon execution and delivery of an SOW, it is deemed to form part of this Agreement.

“Subscription Term” means the period during which Customer’s Authorized Users are permitted to access and use the SaaS, as set forth in the applicable Order Form.

“Support Services” has the meaning given in Section 3.

1. ACCESS TO AND USE OF THE SAAS.
   1. Limited Purpose Access Grant.  Subject to Customer’s and its Authorized Users’ continuing compliance with this Agreement and payment of the applicable fees, Provider hereby grants to Customer a limited, personal, non-exclusive, non-transferable, revocable right for Authorized Users of Customer to access the features and functions of the SaaS during the Subscription Term, solely through Provider’s Website to evaluate the SaaS at Provider’s sole and absolute discretion.  This access grant may not be sublicensed, in whole or in part.  The scope of Customer’s use of the SaaS is subject to the terms and conditions of this Agreement, including any usage or other parameters or limitations set forth in the applicable Order Form.  Customer acknowledges and agrees that this Agreement shall only provide Customer with access to and use of the SaaS for evaluation purposes only on Provider’s premises.  Customer shall not be entitled to any further use, copy or license of the SaaS under this Agreement. 
   2. Access Protocols.  On or as soon as reasonably practicable after the execution of this Agreement, Provider shall provide to Customer the necessary access credentials and protocols to allow Authorized Users to access the SaaS (the “Access Protocols”). Customer acknowledges and agrees that, as between Customer and Provider, Customer shall be responsible for all acts and omissions of Authorized Users, including any act or omission of an Authorized User, which, if undertaken by Customer, would constitute a breach of this Agreement and any act by a person (whether or not an Authorized User) using Customer’s Access Protocols.  Customer shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement that are applicable to their use of the SaaS and shall cause them to comply with such provisions.
   3. Account Administration.  Customer shall designate at least one Authorized User to act as an administrator who will act as Customer’s principal point of contract with Provider for purposes of this Agreement.
   4. Provider Content.  Customer acknowledges that Provider does not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, reliability, or other attributes of any Provider Content.  As between Customer and Provider, Customer is solely responsible for (i) determining the suitability of the Provider Content for use by Customer, and (ii) as necessary for its intended use, verifying the authenticity, integrity, and accuracy of the Provider Content prior to using it. 
   5. Compliance.  (a) Customer’s and its Authorized Users’ access to and use of the SaaS is subject to their continuing compliance with all of the following: (i) the terms and conditions set forth in this Agreement; (ii) Provider’s Website Terms of Use and Privacy Policy available on Provider’s Website; (iii) third-party service terms and conditions governing any Content accessed through the SaaS that is published or distributed by a third-party website, and (iv) all Applicable Laws, including Data Privacy and Security Laws.  In the event of a conflict between this Agreement and Provider’s Website Terms of Use, this Agreement shall prevail and control.

(b) As between Customer and Provider, Customer is solely responsible for compliance with Applicable Laws relevant to its Authorized Users accessing or using the SaaS while outside the U.S. and such other territory(ies).

1. 1. Restrictions.  Customer and all Authorized Users shall not act outside the scope of the rights that are expressly granted by Provider in this Agreement.  Further, Customer and all Authorized Users shall not: (a) use the SaaS in any manner that is inconsistent with this Agreement; (b) modify any program code of the SaaS or attempt to create or permit the creation of any derivative works of the SaaS; (c) access or use the SaaS or in order to develop or support, or assist another party in developing or supporting, any products or services competitive with the SaaS; (d) decompile, reverse engineer, or use any other method in an attempt to view or recreate any of the source code of the SaaS or extract any trade secrets from it; (e) use the SaaS to operate the business of a third party or to process data or content provided by a third party for the operation of a third party’s business, or otherwise use the SaaS on a third party’s behalf, or to act as a service bureau or provider of application services to any third party; (f) knowingly or intentionally re-use, disseminate, copy, or otherwise use the SaaS or associated Provider Content in a way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of Provider or any third party; or (g) sell, lend, lease, assign, transfer, pledge, permit a lien upon, or sublicense any of the rights granted by this Agreement with respect to the SaaS.
   2. No Interference with Service Operations.  Customer and its Authorized Users will not take any action designed or intended to: (a) interfere with the proper working of the SaaS; (b) circumvent, disable, or interfere with security-related features of the SaaS or features that prevent or restrict use, access to, or copying the SaaS or any Content or other data, or that  enforce limitations on use of the SaaS or Content; or (c) impose (or which may impose, in Provider’s sole discretion) an unreasonable or disproportionately large load on the SaaS infrastructure.
   3. SaaS Evaluation. Customer acknowledges and agrees that since these Services and the access to and use of the SaaS is for evaluation purposes only, Customer shall share the results of Customer’s evaluation against a comparable solution with Provider.  In the event Customer’s evaluation against a comparable solution does not meet Customer’s expectations, Provider will have the ability (in Provider’s sole and absolute discretion) to either (a) cure any deficiency with the SaaS and Services and Customer shall perform another evaluation sharing the results thereof with Provider (at no additional cost or expense to Customer) or (b) terminate this Agreement (and any Order Form thereto) with a refund of any Fees on a pro-rata basis for the portion of a Subscription Term not used by Customer.
2. SUPPORT.
   1. Technical Support.  At no additional charge and during Provider’s normal business hours, Monday through Friday, excluding Provider-designated holidays unless otherwise mutually agreed between the Parties), Provider will provide reasonable technical support and assistance for requests from Authorized Users (the “Support Services”).  Provider may also offer upgraded support services for an additional fee.
   2. Scheduled Maintenance.  Provider reserves the right to take down applicable servers hosting the SaaS to conduct scheduled and emergency maintenance. Provider will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours and to provide at least 24 hours’ advance notice for non-emergency maintenance.  Provider will not be responsible for any damages or costs incurred by Customer due to unavailability of the SaaS during scheduled or emergency maintenance.
3. PROFESSIONAL SERVICES.

If Provider has agreed to perform Professional Services for Customer under this Agreement, the Parties shall prepare and sign a Statement of Work describing the Professional Services to be performed and setting forth any other pertinent details, including the locations at which the Professional Services will be performed, the planned schedule of performance, the deliverables (if any) to be produced by Provider and delivered to Customer, the amount and manner of payment of Provider’s fees for the Professional Services, and any associated responsibilities of Customer relating to the Professional Services.  Customer’s obligation to pay the Fees set forth in an Order Form is not dependent on Provider’s performance of any Professional Services pursuant to an SOW.

1. ALLOCATIONS OF RISK.
   1. Representations and Warranties.  Each Party represents to the other (i) that the execution and performance of its obligations under this Agreement will not conflict with or violate any Applicable Laws or any agreement or order by which the representing Party is bound; and (ii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
   2. Disclaimers.  (a) CUSTOMER REPRESENTS THAT IT IS ENTERING THIS AGREEMENT WITHOUT RELYING UPON ANY PROVIDER REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, SYSTEM RELIABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, AND ALL WARRANTIES THAT MAY OTHERWISE BE IMPLIED.  NO WARRANTIES ARE MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. 

(b) CUSTOMER ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST PROVIDER, FOR THE SELECTION OF THE SAAS TO ACHIEVE CUSTOMER’S INTENDED RESULTS AND FOR ITS USE IN CUSTOMER’S BUSINESS OF THE PROVIDER CONTENT, INCLUDING WITHOUT LIMITATION ALL RESULTS OBTAINED FROM THE USE OF THE SAAS. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE PROVIDER CONTENT, INCLUDING WITHOUT LIMITATION ALL RESULTS OBTAINED FROM THE USE OF THE SAAS, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS.  PROVIDER DOES NOT WARRANT THAT THE SAAS WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SAAS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

1. 1. Indemnification of Customer by Provider.  Provider agrees to defend, indemnify, and hold harmless Customer from and against all third-party claims and actions (collectively, “Claims” and individually, a “Claim”) that may, at any time, arise out of or relate to: (a) a breach or alleged breach by Provider of any of its representations given in Section 5.1; or (b) a Claim that the SaaS or any Provider Content provided by Provider hereunder infringes any third party’s Intellectual Property Rights.
   2. Indemnification of Provider by Customer.  Except to the extent of any Claims in respect of which Provider is obligated to indemnify Customer under Section 5.3, Customer agrees to defend, indemnify and hold harmless Provider and its affiliates from and against all Claims, that may, at any time, arise out of or relate to: (a) use of the SaaS or any Provider Content by or on behalf of Customer or an Authorized Customer Entity other than in accordance with this Agreement; (b) the posting, display, distribution, broadcast or other use of Customer Data in connection with the SaaS hereunder, including Claims that any such use infringes or otherwise violates the rights of any third party, including Intellectual Property Rights, privacy, publicity or other personal or proprietary rights, or that the Customer Data contains libelous, defamatory or otherwise injurious or unlawful material; and, in each case, associated Losses.
   3. Limitations of Liability.  Except as expressly provided in this Section 5.5, neither Party shall have any liability under or in connection with this Agreement for any indirect, incidental, consequential, special, exemplary, or punitive damages, nor any liability for lost profits, loss of data, loss of business opportunity, or business interruption, regardless of the theory of liability (including theories of contractual liability, tort liability, or strict liability), even if the liable Party knew or should have known that those kinds of damages were possible.  IN ADDITION, PROVIDER’s maximum cumulative liability under or in connection with this Agreement shall never exceed CUSTOMER’s actual direct damages, capped at an amount equal to the greater of (a) the total amount paid under this Agreement by Customer to Provider during the 12-month period preceding the occurrence of the event giving rise to liability, or (b) $1000. The foregoing limitations of liability shall not be applicable to a Party’s indemnification obligations under this Section 5 or to any damages that the liable Party is not permitted to disclaim (or, as applicable, limit) under Applicable Law.  Customer acknowledges that this Section 5.5 is an essential part of this Agreement, absent which the economic terms and other provisions of this Agreement would be substantially different.
2. TERM AND TERMINATION.
   1. Term.  The term of this Agreement commences on the start date of the Subscription Term set forth in the first Order Form executed by both Parties hereunder and continues until the earlier of the date this Agreement has been terminated or the Subscription Term set forth in an Order Form entered into by the Parties has expired or has been terminated.   
   2. Termination.  Either Customer or Provider may terminate this Agreement, and all Order Forms or only an affected Order Form (a) for cause upon written notice to the other Party if the other Party has committed a material breach of this Agreement and the breach remains uncured 30 days after the breaching Party has received written notice of the breach from the non-breaching Party, or (b) 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.  Notwithstanding the foregoing, Customer acknowledges and agrees that the SaaS is in a development and experimental stage and therefore Provider shall be permitted to terminate this Agreement at any time in its sole and absolute discretion upon immediate notice to Customer.
   3. Effect of Termination on Fees.  All Fees paid or payable for the terminated Subscription Term are noncancellable and nonrefundable, and any unpaid Fees for the remainder of the terminated Subscription Term will become immediately due and payable. Notwithstanding the foregoing, if this Agreement is terminated by Provider pursuant to the last sentence of Section 6.2, any pre-paid fees for the unused portion of the terminated Subscription Term will be refunded to Customer.
   4. Other Effects of Termination.  Effective immediately upon expiration or termination of this Agreement, (i) all rights granted under this Agreement will become void, (ii) Customer shall cease all use of and access to the SaaS, and (iii) neither Party will have continuing rights to exercise any license granted by the other Party under this Agreement. 
   5. Survival.  Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination or expiration will survive the expiration or termination of this Agreement (or the applicable Order Form) for any reason. 
3. PROPRIETARY RIGHTS.
   1. Services and Provider Content.  As between the Parties, the Services (including the SaaS) and all Provider Content, and all Intellectual Property Rights in and to them, are and shall remain owned by Provider, and are protected by copyright, patent, trade secret, trademark, and other intellectual property laws and treaties. 
   2. Customer Data License.  Customer hereby grants to Provider a non-exclusive, non-transferable right and license to access, use, host, copy, display, process, transmit, and deliver the Customer Data through the SaaS and any other Services hereunder, as necessary or convenient for Provider to comply with its obligations and exercise its rights under this Agreement.  For the avoidance of doubt, Provider shall not share or expose Customer Data to any third party.
   3. Feedback.  If Provider receives from Customer or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Services or any other Provider products, offerings or services (“Feedback”), Provider may use, disclose and exploit such Feedback without restriction and without paying any royalties or other compensation, including to improve the Services and to develop, market, offer, sell and provide other products and services.
   4. No Implied Licenses by Provider. Customer acknowledges that there are no licenses granted by Provider by implication under this Agreement.  Provider reserves all rights that are not expressly granted herein.  Customer acknowledges that, as between the Parties, Provider owns all Intellectual Property Rights and proprietary interests that are embodied in, or practiced by, the SaaS or other Services, with the exception of Intellectual Property Rights in or to Customer Data that may be distributed through the SaaS.
4. CONFIDENTIALITY; PUBLICITY. 
   1. Confidentiality of the SaaS.  Absent prior written permission from an authorized representative of Provider, Customer shall not disclose to any third party any information (i) concerning the SaaS, (ii) concerning the pricing for the SaaS or the Services or (iii) which Provider designates as proprietary or confidential to Provider.
   2. Publicity.  Provider may include Customer’s name on Provider’s customer list and may describe briefly, and in general terms, the nature of the services provided by Provider to Customer and the results thereof. Notwithstanding the foregoing, in no way shall Provider disclose any Customer Data or information of Customer that is marked by Customer as proprietary or confidential and not otherwise in the public domain or independently known or developed by Provider.
   3. Export Controls.  Customer shall not export, re-export, import, or transfer access to the Services in violation of any applicable export laws or regulations, and Customer shall not assist or facilitate others in doing any of the foregoing.  Customer represents and warrants that it and all Authorized Users are not located in, a resident of, or a citizen of any country to which the United States has embargoed goods.
5. GENERAL.
   1. Governing Law.  The validity, construction, and interpretation of this Agreement and the rights and duties of the Parties shall be governed by the internal laws of the State of California, without regard to principles of conflicts of laws.
   2. Force Majeure.  Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors.
   3. Dispute Resolution.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by a single arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Each Party shall bear its own costs, fees and expenses incurred in connection with the arbitration proceeding, including attorneys’ fees and expenses and witness costs and expenses.  The arbitrator shall apportion the fees, expenses and compensation of the American Arbitration Association and the arbitrator between the parties in such amount as the arbitrator determines is appropriate.  Arbitration shall take place in San Diego, California, unless the Parties mutually agree to another location.  Notwithstanding the foregoing, either Party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such party’s rights or property. Any civil action seeking injunctive relief, challenging an arbitration proceeding or award or otherwise related to this Agreement will be instituted and maintained exclusively in the federal or state courts situated in the city of San Diego, California, or in San Diego County, California.
   4. Notices.  All notices required or permitted under this Agreement shall be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Provider and Customer shall be their respective addresses specified in the applicable Order Form.  Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either Party may change its notice address by giving written notice to the other Party by the means specified in this Section.
   5. No Assignment.  Customer shall not assign or otherwise transfer this Agreement without Provider’s prior written consent.  Any purported assignment without such prior written consent shall be void.
   6. Construction; Headings.  No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or arbitrator by reason of such Party having or being deemed to have structured or drafted such provision.  The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
   7. Severability.  If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, then the Parties agree to replace it with an enforceable provision reflecting the intent of the original provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will remain in full force and effect.
   8. Waiver.  The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either Party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.
   9. Entire Agreement.  This Agreement (including Order Forms entered under it) constitutes the entire agreement between Provider and Customer with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such matter.  This Agreement may be amended only by an instrument in writing executed by a duly authorized representative of each Party.

[End of SaaS Terms and Conditions]