Evaluation License Agreement

This Evaluation License Agreement (“Agreement”), dated as of the date set forth below (or the date of click through, if being executed online in a click through format) (“Effective Date”), is by and between Zebrium, Inc., a Delaware corporation (“Zebrium”), and the other party named on the signature page hereto (or the party accepting these terms, if this license is being execution online in a click through format) (“Licensee”).  

1. LICENSE GRANT; COSTS. In accordance with and subject to the terms and conditions of this Agreement, Zebrium hereby grants to Licensee a limited, non-exclusive, non-transferable license to use Zebrium’s machine learning powered root cause analysis software (the “Software”) and to operate the object code version of the Software and any documentation and help files included within the Software (the “Documentation” and, collectively with the Software, the “Product”) for Licensee’s internal evaluation purposes only. Upon execution hereof, Zebrium shall enable a downloadable version of the Software for Licensee to download and install on servers at Licensee’s premises or within a VPC in the Licensee’s public cloud account. In consideration of the right to use the Product and the evaluation license granted herein, Licensee hereby agree to be bound by the terms, conditions, restrictions and covenants set forth herein as well as the terms and condition of use set forth at https://www.zebrium.com/terms-of-service (to the extent that such terms are applicable to an on-premises license) (the “Standard Terms”). To the extent that there is a conflict between the provisions of this Agreement and the Standard Terms, the terms of this Agreement shall take precedence over, and shall supersede the provisions of the Standard Terms. Under no circumstances is Licensee permitted or authorized to use the Product in anything except a controlled environment or make available the Product to any other person or entity (including any person or entity with whom Licensee has entered into a non-disclosure, confidentiality or similar agreement) without the prior written consent of Zebrium. Licensee shall only be able to use the Product during the Evaluation Period (as defined below). Thereafter, if Licensee desires to continue evaluating the Product, Licensee must enter into another agreement with Zebrium to establish a relationship which will allow for such continued evaluation or other use of the Product. During the Evaluation Period, Licensee shall not be obligated to pay Zebrium any licensing or subscription fees. Throughout the Evaluation Period and not less frequently than bi-weekly, Licensee shall participate in a video conference with Zebrium to provide an evaluation of the Product in Licensee’s environment.
   
   
2. RESTRICTED USE.   Licensee hereby agrees that it shall not (i) modify, create derivative works based on, loan, rent, lease, give, sublicense, transfer, publish, disclose, display, reverse engineer, decompile, translate, adapt, or disassemble the Product, (ii) attempt to determine, replicate or create the source code from the object code for the Software, (iii) make available the Product to any other person or entity, (iv) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on the Product, (v) use the Product in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation or as a basis for the preparation of other software programs or derivative works, or use in any manner that infringes the intellectual property or other rights of Zebrium, or (vi) electronically transmit the Software, including over the Internet, or otherwise transmit the Software without explicit authorization of Zebrium. Licensee agrees to communicate the terms and restrictions contained in this Agreement to all persons under its employment, direction, or control (“Representatives”) who have access to the Product, and to use all reasonable efforts to see that such persons abide by the terms and conditions of this Agreement. A breach of the terms hereof by any Representative of Licensee shall be deemed to constitute a breach by Licensee hereunder. Licensee hereby agrees that it shall not use the Product to engage in any illegal, unfair or unethical practices. Licensee further acknowledges and agrees that the Product is not designed, and shall not be used in circumstances: (i) where the failure of the Product to operate as anticipated is likely to result in significant risks to health or safety; (ii) where fail-proof delivery of time-specific information is required; or (iii) requiring fail-safe controls, including operation of nuclear facilities, aircraft or vehicle navigation or communication systems, air traffic control, and life support or weapons systems. Licensee agrees to notify Zebrium immediately in writing of any unauthorized use or breach of the covenants contained herein.
   
   
3. RESULTS OF EVALUATION. Licensee hereby expressly agrees not to publish, disseminate or otherwise make available to any other person or entity any benchmarks, findings or other results of its evaluation use of the Product without the prior written consent of Zebrium. In the event Licensee desires to publish benchmarks or findings, it shall submit a copy of such written materials to Zebrium for approval, which may be withheld in Zebrium’s sole and absolute discretion. At Zebrium’s request, Licensee shall provide its results and findings regarding the Product to Zebrium. Zebrium shall be the sole and exclusive owner of, and Licensee hereby assigns to Zebrium all rights in any of Licensee's proposed or suggested changes, modifications, upgrades or enhancements, in design, functionality or otherwise, to the Product. Licensee acknowledges that Zebrium is under no obligation to consider or implement any such changes, modifications, upgrades or enhancements recommended or requested by Licensee.
   
   
4. OWNERSHIP.   Zebrium has and shall have sole and exclusive ownership of all right, title and interest in and to the Software and the Documentation and all portions and copies thereof. Licensee acknowledges that Zebrium shall be entitled to equitable relief, including preliminary and permanent injunctive relief, in addition to other legal remedies, in the event that Licensee breaches this Agreement.
   
   
5. CONFIDENTIALITY; NON-DISCLOSURE. Licensee agrees to maintain the confidentiality of all information pertaining to the Software and Documentation and to use at least such degree of care as is appropriate to avoid unauthorized disclosure of any information relating to the Software and/or Documentation. Licensee shall at all times during the term of this Agreement and thereafter hold in strictest confidence, and not use or disclose to any person, firm or corporation without written authorization from Zebrium, any information pertaining to the Software and/or Documentation. LICENSEE WILL BE LIABLE FOR ALL DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF INFORMATION RELATING TO THE SOFTWARE AND/OR DOCUMENTATION.
   
   
6. TERM; TERMINATION. This Agreement is effective for a period of sixty (60) days from the date of execution of this Agreement (the “Evaluation Period”). Upon termination of this Agreement, Licensee must immediately discontinue using the Product and provide Zebrium with written certification and proof of the destruction of the original copy and other copies of the Documentation.  
   
   
7. COPYRIGHT. The Software and Documentation contain material that is protected by United States copyright law and trade secret law, and by international treaty provisions. All rights not granted to Licensee herein are expressly reserved by Zebrium. Licensee may not remove or alter any proprietary notice of Zebrium from any copy of the Software or Documentation.

8. No Warranty. THE PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS WITH LICENSEE. 

9. Limitation of Liability; INDEMNIFICATION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ZEBRIUM BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF PROPERTY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF ZEBRIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. INDEMNIFICATION BY LICENSEE. Licensee shall defend, indemnify, and hold Zebrium harmless from any and all claims, damages, and costs (including reasonable attorneys’ fees) based upon, allegedly or in fact, Licensee’s use of the PRODUCT, EXCEPT FOR CLAIMS FOR WHICH ZEBRIUM IS REQUIRED TO PROVIDE INDEMNIFICATION PURSUANT TO THE STANDARD TERMS. Zebrium shall promptly notify Licensee of any such claim ASSERTED AGAINST ZEBRIUM.

11. Export Restrictions. Licensee shall not export or re-export the Product in violation of any applicable laws or regulations. Licensee agrees to hold harmless and defend Zebrium from and against any allegations, claim, liability or damages which arise from violation of this Section 11 of the Agreement. 

12. EXCLUSION OF UNITED NATIONS SALES CONVENTION: The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods ("the Convention"). Rather the rights and obligations of the parties shall be governed as provided in Section 14 of this Agreement. The parties hereby agree that the Convention does not apply to this Agreement or to the resolution of any disputes arising out of or related to this Agreement. 

13. CONTROLLING AGREEMENT/TRANSLATIONS: This Agreement is prepared and executed in the English language. The English language version shall govern the parties' relationship. Any translation of this Agreement into any other languages shall be for convenience of reference only and shall have no legal effect. 

14. Miscellaneous.              

(a)        This Agreement and the Standard Terms set forth the entire agreement and understanding between the parties and neither party shall be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter hereof other than as expressly provided herein or therein or as duly set forth on or subsequent to the date hereof in writing and signed by a proper and duly authorized representative of the party to be bound thereby. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect the right of such party at a later time to enforce the same. No waiver by any party of any condition or of any breach of any term contained in this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or of any breach of any such term or any other term set forth in this Agreement. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such provision shall be interpreted so as to reasonably effect the intention of the parties and such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions contained in this Agreement invalid, inoperative, or unenforceable to any extent whatsoever.   The invalidity of any portion of this Agreement shall not affect the remaining portions of this Agreement.

(b) This Agreement shall be construed, interpreted and governed by the laws of the State of California without regard to conflicts of law provisions thereof.

IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above.

ZEBRIUM, INC.

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