BETA TEST AGREEMENT
1. Creation of Agreement. CloudFabrix Software Inc. has developed and licenses to third parties its data management solution designed to transform and modernize
legacy applications (the "Software"). CloudFabrix Software Inc. and the licensee accepting this Agreement and downloading the Software (the "Licensee") have
agreed for Licensee to have a royalty-free trial license to evaluate a beta version of the Software in return for providing CloudFabrix Software Inc. with
certain feedback, as described in more detail in the terms of this Beta Test Agreement (the "Agreement"). By downloading or using the Software, or by
clicking to accept or agree to the terms of this Agreement when this option is made available to Licensee, Licensee is creating a binding legal agreement with
CloudFabrix Software Inc., and accepting and agreeing to be bound and abide by the terms and conditions of this Agreement. Licensee should download and retain
a copy of this Agreement for its records.
2. License Grant.
(a) Software Product. Subject to the terms and conditions of this Agreement, CloudFabrix Software Inc. hereby grants Licensee a nonexclusive, nontransferable
right and license, with no right to grant sublicenses, to install and use copies of the object code version of the Software solely for the evaluation
purposes expressly described in Section 2(b). Licensee may use and copy the related documentation provided by CloudFabrix Software Inc. for use with
the Software (the "Documentation"), solely in support of its permitted uses of the Software hereunder.
(b) Trial Use. Licensee shall have the right under this Agreement to use the Software, without the payment of any license fee, solely in a non-production
test environment for evaluation and proof of concept purposes of this Software (an "Evaluation License"), and subject to all of the other limitations
in this Agreement, for the evaluation period specified by CloudFabrix Software Inc. at the time of registration (the "Evaluation Period"). Should
Licensee wish to continue using the Software after the Evaluation Period ends, it must enter into a standard royalty-bearing CloudFabrix Software Inc.
End User License Agreement.
(c) Third Party Software. The Software may contain or be provided with open source software and/or software owned by third parties, as identified in the
Documentation ("Third Party Software"). Licensee shall be licensed the right to use any such Third Party Software during the Evaluation Period, subject
to the applicable restrictions and other terms and conditions of use set forth in the Documentation or in any "Third-Party Licenses ReadMe" file or
similar file located in the installation directory for the Software.
(d) No Reverse Engineering. Licensee shall not reverse engineer, decompile, disassemble, decode, or otherwise attempt to access the source code of the
Software nor copy, modify, translate or create derivative works of the Software.
3. Feedback. As Licensee evaluates the Software, it shall provide CloudFabrix Software Inc. with reactions, criticisms, suggestions and other feedback
on the features and functions of the Software ("Feedback"). Licensee may provide informal Feedback from time to time orally, electronically or in writing.
In addition, not less often than once a week during the Evaluation Period, Licensee shall provide CloudFabrix Software Inc. with a written or electronic
summary of its Feedback for the prior week, including (a) a list of any features of the Software that have not worked as expected, or have not been
helpful, and suggestions as to how those features could be improved; and (b) suggestions of any additional Software features that Licensee believes
would be helpful. Upon request by CloudFabrix Software Inc., knowledgeable employees of Licensee shall meet with CloudFabrix Software Inc.
employees to discuss and answer questions on the Feedback.
4 Software Support. No support services are available for an Evaluation License, except that CloudFabrix Software Inc. may agree, in its sole discretion,
to provide limited agreed upon onsite or remote support for any Licensee-conducted pilot or proof of concept during the permitted Evaluation Period.
5. Termination. Either party may terminate this Agreement if the other party breaches any of the material terms and conditions of this Agreement and
fails to cure that breach within ten days after written notice of the breach from the nonbreaching party. Upon termination, Licensee shall no longer
have any right or license to use the Software and must promptly destroy all copies of the Software in its possession. The other terms of this
Agreement shall survive termination and continue in full force and effect.
6. Intellectual Property and Confidential Information.
(a) Ownership of Intellectual Property Rights. As between the parties, CloudFabrix Software Inc. shall own and retain all right, title and interest in
and to the Software and in all of the methods, processes, techniques and other intellectual property used in the Software, and in all of the Feedback
provided with respect to the Software, and in all of the patents, copyrights, trade secrets, trademarks and other intellectual property rights
embodied in or related to the use of the Software. Licensee acknowledges and agrees that its possession, installation and use of the Software
does not transfer to it any title to the Software nor the intellectual property in the Software, and that it is acquiring no rights of any nature to
the Software except for the right and license expressly granted under Section 2.
(b) Confidential Information. During the term of this Agreement and for a period of five years thereafter, Licensee shall hold in strict confidence the
Software and any other proprietary or confidential information of CloudFabrix Software Inc. that is disclosed to Licensee ("CloudFabrix Software Inc.
Confidential Information") and shall not disclose the CloudFabrix Software Inc. Confidential Information to any third party nor use the
CloudFabrix Software Inc. Confidential Information for any purpose except for purposes expressly provided for in this Agreement. During the term of
this Agreement and for a period of five years thereafter, CloudFabrix Software Inc. shall hold in strict confidence any proprietary or confidential
information of Licensee that is disclosed to CloudFabrix Software Inc. ("Licensee Confidential Information") and shall not disclose the Licensee
Confidential Information to any third party nor use the Licensee Confidential Information for any purpose except for purposes expressly provided
for in this Agreement. The above restriction shall not be construed to restrict the use or disclosure of information disclosed by one party to
the other that (i) is or becomes publicly known other than as a result of any act by the receiving party, (ii) is lawfully received by the receiving
party from a third party not in a confidential relationship with the disclosing party, (iii) was already rightfully known by the receiving party prior
to receipt thereof from the disclosing party or (iv) after notice and an opportunity to object, is required by law to be disclosed.
7. Disclaimer of Warranties. LICENSEE ACKNOWLEDGES THAT THE VERSION OF THE SOFTWARE BEING PROVIDED FOR EVALUATION IS A BETA VERSION THAT MAY STILL
HAVE DEFECTS THAT NEED TO BE CORRECTED. ACCORDINGLY, CloudFabrix Software Inc. DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO
THE SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, CloudFabrix Software Inc. MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR
OTHER FAILURES OR THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CloudFabrix Software Inc.
OR ITS EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THE FOREGOING WARRANTY.
8. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 6, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR GOODWILL,
BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE DURING THE EVALUATION
OF THE SOFTWARE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER ANY SUCH CLAIM ARISES IN TORT, CONTRACT,
STATUTE OR OTHERWISE.
9 Force Majeure. Neither party shall be liable for delays in performance or for non-performance due to unforeseen circumstances or any events or causes
beyond that party's reasonable control, including cyber-attacks, acts of God, war, epidemic, fire, flood, weather, sabotage, strikes or labor disputes,
civil disturbances or riots or governmental action.
10. Assignment. Neither party may assign all or any part of its rights or delegate all or any part of its duties hereunder without the prior written
consent of the other party. Any such purported assignment or delegation, without such consent, shall be void.
11. Notice. All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when
delivered by hand or by a reputable national over-night courier service or by facsimile transmission or three business days after mailing
when mailed by registered or certified mail (return receipt requested), postage prepaid. Notices to Licensor may be sent to
CloudFabrix Software Inc. , Inc.
7901 Stoneridge Drive, #300
Pleasanton, CA, 94588
Notices to Licensee may be sent to the address provided during registration. Any party may change the address to which notice is to be given
by notice given in the manner set forth above.
12. Choice of Law and Venue. This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of Delaware,
excluding its choice of law rules. In any event, this Agreement shall not be governed by the United Nations Convention on Contracts
for the International Sale of Goods.
13. Interpretation. The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of
the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement. No failure or delay by
either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently enforce
any of its rights, whether relating to the same or a subsequent matter. This Agreement does not grant any rights or remedies to any
person or entity that is not a party to this Agreement and no person or entity is a third party beneficiary of this Agreement.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, such provision shall be deemed modified to
the extent necessary to render such provision enforceable, and the rights and obligations of the parties shall be construed and enforced
accordingly, preserving to the fullest extent permissible the intent and the agreements of the parties.
14. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreement concerning the Software.
This Agreement may be amended, modified or supplemented only by written agreement of the parties.