Evaluation Terms of Use

PLEASE READ THESE EVALUATION TERMS OF USE FULLY AND CAREFULLY BEFORE USING THE SERVICES AND SOFTWARE (AS DEFINED BELOW) OFFERED BY SYNC COMPUTING CORP. (“SYNC”). THESE EVALUATION TERMS OF USE SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR USE BY YOU AND YOUR EMPLOYER (COLLECTIVELY, “COMPANY”) OF THE SERVICES AND SOFTWARE. BY USING THE SERVICES OR SOFTWARE IN ANY MANNER, COMPANY AGREES THAT IT HAS READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS HEREIN. PLEASE NOTE THAT COMPANY’S USE OF AND ACCESS TO THE SERVICES AND SOFTWARE ARE EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS HEREIN; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, OR IF YOU ARE NOT AUTHORIZED TO AGREE TO ALL OF THE FOLLOWING ON BEHALF OF COMPANY, YOU MAY NOT USE OR ACCESS THE SERVICES OR SOFTWARE IN ANY MANNER.

1. Evaluation License

Subject to Company’s full compliance with all the terms of this Agreement, Sync grants Company a nonexclusive, non-sublicensable, non-transferable, limited license to access and use Sync’s Apache Spark services (the “Services”), only for Company’s internal evaluation in accordance with documentation provided to Company by Sync (if any). Sync will provide to Company the necessary passwords to allow Company to access the Services. Sync may in its sole discretion modify, enhance or otherwise change the Services.

2. Restrictions

Company shall not, directly or indirectly:

(i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law);

(ii) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part;

(iii) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Company as set forth in this Agreement;

(iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software;

(v) remove any product identification, proprietary, copyright or other notices from the Services or Software;

(vi) permit any third party to do any of the foregoing.

Company will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Sync of any unauthorized use that comes to Company’s attention and provide all reasonable cooperation to prevent and terminate such use.

3. Confidentiality; Feedback

Any technical, financial or other information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and designated as confidential or proprietary at the time of disclosure or of such a nature that a reasonable person would understand such information to be confidential or proprietary (“Confidential Information”) shall be held in confidence and not disclosed or, except as expressly provided herein, used by the Receiving Party; this obligation will not apply to information that is generally and freely publicly available through no fault of the Receiving Party, or that the Receiving Party otherwise rightfully obtains from third parties without restriction. Company may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Services (“Feedback”). All Feedback shall be solely owned by Sync (including, with respect to all intellectual property rights) and be Sync Confidential Information. Company shall and hereby does make all assignments necessary to achieve such ownership. Notwithstanding anything to the contrary in this Agreement, the Services and Software are Sync Confidential Information.

4. Company Data

Customer shall (and Customer hereby represents and warrants that it does) have and retain all right, title, and interest, including all intellectual property rights, in and to the information, data, and other content from Customer’s AWS log files that is submitted, posted, or otherwise transmitted through the Services by Company (“Company Data”). Sync may use Company Data only to (i) provide the Services to Company and perform this Agreement and (ii) to test and improve or otherwise modify Sync’s products and services, provided that Sync’s use of Company Data for the purposes described in (ii) may only be in aggregated and anonymized form. Customer acknowledges and agrees that it may request and receive from Sync a parser that removes from Customer’s AWS log files data and other information that are not needed by Sync to provide Services and that Customer may review the results from such parser prior to submitting such results to Sync for the provision of Services. If Customer receives such parser, then for the purposes of this Agreement, such parser shall be deemed to be included in “Services.”

5. Support Services

The parties may mutually agree upon support to be provided by Sync, but in the absence of such written agreement, no support services are provided under this Agreement.

6. Term and Termination

This Agreement shall remain in effect except as specified below. The licenses and services and rights provided by Sync to Company will terminate (i) three (3) months following the Effective Date, or (ii) immediately upon notice by Sync, whichever date occurs first. After termination, if Company desires to continue using the Services, Company should contact Sync to obtain pricing and other terms applicable to commercial use. Upon any termination, Company shall immediately cease all use of the Services and return all Confidential Information of Sync related thereto (including all copies and extracts thereof). The following provisions will survive termination: 2, 3, 4, and 6 through 9. Termination is not an exclusive remedy and all other remedies will remain available.

7. Warranty Disclaimer

THE SERVICES IS PROVIDED “AS IS” AND SYNC AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, RELATING TO THE SERVICES AND ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NONNFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8. Limitation of Liability

NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, NEITHER SYNC NOR ITS SUPPLIERS SHALL BE LIABLE WITH RESPECT TO THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) AMOUNTS, IN THE AGGREGATE, IN EXCESS OF $500; (II) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III) INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE DAMAGES, EVEN IF FORESEEABLE.

9. Miscellaneous

Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Company; any attempt to do so shall be void. Sync may assign this Agreement in whole or in part. Any notice, report, approval or consent required or permitted hereunder shall be in writing. As between the parties, Sync will own all intellectual property rights in the Services and all improvements, modifications and derivative works thereof and all related documentation and materials. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the Commonwealth of Massachusetts, without regard to conflicts of laws provisions thereof. All disputes arising in connection with this Agreement shall be subject to the sole and exclusive jurisdiction of, and venue in, the state and Federal courts located in Boston, Massachusetts. Any waivers or amendments shall be effective only if made in writing and executed by both parties. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action.