Terms of Service

1.1 “Services” means MemVerge’s hosted cloud MemMachine offerings and any other solutions offered by MemVerge as specified in an Order or online, and any associated user documentation (“Documentation”).

1.2 “Authorized User” means any employee, contractor, or other personnel associated with Customer’s organization who has been authorized to use the Services in accordance with these Terms set forth herein. “Customer” as used in these Terms also includes Customer’s “Authorized Users,” if any.

1.3 “Customer Data” means all data, content, information and materials that Customer or its Authorized Users submit, upload, transmit, store, index or otherwise make available through the Services.

1.4 “Order” means the mutually agreed upon Order that is signed by the parties for the purchase of a license to the Services or that is entered into online.

1.5 “Services” means the Services and any implementation or support services provided hereunder.

1.6 “Term” has the meaning given in Section 12 (Term and Termination).

4.1 Integration. Customer acknowledges and agrees that as applicable, certain Services will integrate with Customer’s existing software to provide the Services. Customer hereby grants MemVerge permission to access Customer’s selected software according to Customer’s configuration and selections in the Services.

4.2 MemVerge Account. Customer must maintain a valid and active MemVerge account in good standing during the Term. Customer’s use of the Services remains subject to these Terms, including, for clarity and without limitation, the acceptable use provisions therein. Customer is responsible for: (a) the compliance of each of Customer’s Authorized Users with these Terms, (b) Customer Data uploaded, transmitted or submitted to the Services, and (c) any activities that occur under Customer’s account.

4.3 Support and Professional Services. MemVerge will provide its standard support services and any implementation Services as set forth in the Order.

4.4 Restrictions. Customer shall not, and shall not permit any third party to:

4.5 Third Party Terms. The Services may incorporate or integrate with certain AI technologies provided by third parties. To the extent that such AI technologies are incorporated into or integrated with the Services or may be used with the Services, Customer must follow the use restrictions of these AI technology providers.

4.6 Compliance with Laws. Customer shall only use the Services in compliance with all applicable laws and regulations, including, without limitation, any laws and regulations concerning the use or development of artificial intelligence (“AI”), agentic AI and generative AI.

6.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, Services or financial information or data relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without confidentiality restrictions by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party as evidenced by its internal files. If a Receiving Party is required by law or a governmental agency to disclose the Disclosing Party’s Proprietary Information, the Receiving Party must provide reasonable notice to the Disclosing Party of such required disclosure so as to permit the Disclosing Party a reasonable period of time to seek a protective order or limit the amount of Proprietary Information to be disclosed.

6.2 MemVerge Ownership. MemVerge shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto and (b) all intellectual property rights related to any of the foregoing.

6.3 Feedback. To the extent Customer or any of Customer’s Authorized Users provide any suggestions to MemVerge regarding the functioning, features, and other characteristics of the Services, Documentation, or other material or services provided or made available by MemVerge (“Feedback”), Customer hereby grants MemVerge a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully transferable, worldwide license (with rights to sublicense through multiple tiers of sublicenses) under all of Customer’s intellectual property rights, for MemVerge to use and exploit in any manner and for any purpose.

6.4 Aggregate Data. MemVerge shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies and MemVerge will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other MemVerge offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

6.5 Customer Name. During the term of these Terms, Customer grants MemVerge a non-exclusive, royalty-free, fully-paid up license to use and reproduce Customer’s trademarks, tradenames, and logos in MemVerge’s marketing materials and website(s) and to indicate that Customer is a MemVerge customer. MemVerge will abide by any written trademark usage guidelines provided by Customer. All goodwill arising out of the use of Customer’s trademarks, tradenames and logos shall inure to Customer’s benefit. To decline MemVerge this license Customer must email privacy@memverge.com stating that Customer does not wish to be used as a reference.

7.1 Limited Warranty. MemVerge will use commercially reasonable efforts to make the Services available 99.5% of the time, excluding any outages caused by the failure of any third-party vendor, the Internet in general, factors outside of our reasonable control, outages that resulted from your software or hardware or third-party software or hardware, or both or any force majeure event. MemVerge represents and warrants to Customer that the Services when used for its intended purpose and in accordance with MemVerge’s instructions, will materially conform to MemVerge’s Documentation for a period of thirty (30) calendar days from the date Customer is first permitted to access and use the Services. Customer’s sole and exclusive remedy, and MemVerge’s sole and exclusive liability for any breach of this warranty will be, at MemVerge’s sole discretion, to either fix the Services to remedy the defect or refund the applicable Fees paid by Customer for the Services, in each case on condition that Customer promptly notifies MemVerge in writing of any alleged breach of this warranty within such thirty (30) day period. This warranty is null and void to the extent the Services: (i) fails to conform with this warranty as a result of its use with any third party hardware or software; (ii) is used for an unintended purpose, is used other than in accordance with its Documentation, or Customer is otherwise in breach of these Terms, or (iii) fails due to any defect in or misconfigurations of Customer’s projects or deployments.

7.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS THE SERVICES ARE PROVIDED “AS IS” AND MEMVERGE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MEMVERGE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.

8.1 MemVerge Rights. All rights, title and interest in and to the Aggregate Data, and Services and any improved, updated, modified or additional parts thereof, shall at all times remain the property of MemVerge or its licensors. Nothing herein shall give or be deemed to give Customer any right, title or interest in or to the same except as expressly provided in these Terms. MemVerge reserves all rights not expressly granted herein.

8.2 Customer Rights. As between Customer and MemVerge, and to the extent permitted by applicable law, Customer owns the Customer Data. Customer grants MemVerge a license to MemVerge to use the Customer Data as necessary to provide the Services, to provide support for the Services, enforce MemVerge’s policies, prevent fraud, and maintain the safety and security of the Services.

9.1 Customer Indemnity. Customer shall indemnify, defend and hold harmless MemVerge and MemVerge licensors from and against any third party claims, losses and expenses (including attorneys’ fees) arising from or relating to Customer’s breach of these Terms (and any terms incorporated by reference), Customer Data and/or Customer’s breach of applicable law.

9.2 MemVerge Indemnity. MemVerge shall indemnify, defend and hold Customer harmless from and against any third-party claims, losses and expenses (including attorney’s fees) arising from or relating to the Services infringing on a third party’s intellectual property rights. MemVerge’s indemnity obligations to Customer in these Terms do not apply to claims arising from (a) the Services or portions or components thereof not provided by MemVerge, (b) modifications by any party other than MemVerge to the Services, (c) the combination of the Services with other services, processes or materials where the alleged infringement relates to such combination, (d) Customer Data; (e) use of the Services in a manner that Customer knows or reasonably should know violates or infringes the rights of others or when Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (f) use of the Services in violation of any third party’s privacy rights or these Terms, or (g) the practice of a patented invention contained in an output or alleged violation of trademark based on use of an output in trade or commerce. To the extent covered under this section, indemnification is Customer’s sole remedy under these Terms for any third-party claims as it relates to the Services.

9.3 Indemnity Procedure. The indemnified party shall promptly notify the indemnifying party of the claim, provide reasonable assistance to the indemnifying party (at the indemnifying party’s expense) and allow the indemnifying party to control the defense of the claim (provided the indemnifying party will not settle a claim on behalf of the indemnified party without first obtaining the indemnified party’s prior written consent, which consent shall not be unreasonably withheld or delayed).

11.1 Fees. Customer will pay MemVerge the then applicable fees described in the Order for the Services in accordance with the terms therein (collectively, the “Fees”). The Fees shall be paid in advance on an annual or monthly basis as set forth in the Order. Unless otherwise specified in the Order, Fees are due and payable net thirty (30) days from the invoice date. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. The Fees for the Services invoiced by MemVerge will not include any taxes, duties and levies, and Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on MemVerge’s net income. If MemVerge has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer. Customer represents and warrants to MemVerge that all of Customer’s payment information is true and that Customer is authorized to use the payment instrument. Customer will promptly update Customer’s account information with any changes (for example, a change in Customer’s billing address or credit card expiration date) that may occur. All fees are non-refundable, except as expressly stated otherwise in these Terms.

11.2 Payments. All payments shall be made in the currency of the United States. If all or any part of any payment owed to MemVerge under these Terms is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to MemVerge of the amounts otherwise payable under these Terms. Customer will reimburse MemVerge any pre-approved and agreed upon costs. MemVerge may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for Customer until the start of the next Renewal Term. MemVerge will provide written notice to Customer for any changes to the fees that affect the Services purchased by Customer. Customer’s continued use of the Services after the price change becomes effective constitutes Customer’s Terms to pay the changed amount.

12.1 Term. Subject to earlier termination as provided below, these Terms shall commence on the Effective Date and will continue for so long as there is an Order in effect or you use or access the Services. The term of each Order will be set forth in therein or for the period you elect in your account (the “Initial Term,” and together with any Renewal Terms, the “Term”) and shall automatically renew for successive periods equal to the subscription period selected by you (e.g. monthly or annual) following the conclusion of the Initial Term (a “Renewal Term”) unless either party notifies the other party in writing, not less than thirty (30) calendar days before the expiration of the then-current subscription term that such party does not wish to renew the Order for the Services for a Renewal Term.

12.2 Termination or Suspension. Notwithstanding any of these Terms, Customer shall not have the right to terminate these Terms for convenience. MemVerge may terminate these Terms for any breach of these Terms on notice Either party may terminate these Terms for the other party’s material breach of these Terms on thirty (30) days prior written notice if the breach remains uncured within such time period. In addition to any other remedies MemVerge may have, MemVerge may also terminate these Terms upon two (2) days’ notice in the case of nonpayment. MemVerge reserves the right to suspend Customer’s access to the Services for (a) violations of these Terms or these Terms (including, without limitation, MemVerge’s AI Policy), (b) suspicion of fraudulent or illegal activity, (c) to prevent a security risk or other credible risk of harm or liability to MemVerge, the Services, or any third party, or (d) if required by law. MemVerge will use reasonable efforts to notify Customer of any suspension or termination and if applicable, give Customer the opportunity to resolve the issue prior to suspension or termination.

12.3 Effect of Termination. Sections 1 (Definitions), the restrictions in Section 4 (Permissions and Restrictions), 6 (Confidentiality; Proprietary Rights), 7.2 (Disclaimer), 8 (Intellectual Property Rights), 9 (Indemnity), 10 (Limitation of Liability), this Section 12.3 (Effect of Termination), 13 (Trade Controls), 14 (Miscellaneous) and 15 (Governing Law; Disputes; Arbitration) shall survive termination. On termination of the Terms, Customer and each of Customer’s Authorized Users must cease using the Services and MemVerge will destroy Customer Data, subject to applicable law.

15.1 Law. These Terms shall be governed by the laws of the State of California without regard to its conflict of laws provisions.

15.2 Binding Contract. Customer acknowledges that these Terms are a contract between Customer and MemVerge, even though it is electronic and is not physically signed by Customer and MemVerge, and it governs Customer’s use of the Services.

15.3 Informal Dispute Resolution. If any claim arises out of or relates to the Services or these Terms, other than as may be provided herein, then you and MemVerge agree to send notice to the other providing a reasonable description of the claim, along with a proposed resolution of it. MemVerge’s notice to you will be sent based on the most recent contact information that you provided MemVerge. If no such information exists or if such information is not current, MemVerge has no obligation under this Section. For a period of sixty (60) days from the date of receipt of notice from the other party, you and MemVerge will engage in a dialog to attempt to resolve the claim, though nothing will require either you or MemVerge to resolve the claim on terms with respect to which you and MemVerge, in each of the parties’ sole discretion, is not comfortable.

15.4 Disputes. Any dispute Customer and MemVerge that is not resolved through negotiation will be resolved exclusively by final and binding arbitration conducted in accordance with the then-current Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services (“JAMS”). The arbitration will be conducted by a single arbitrator selected by agreement of Customer and MemVerge or, if Customer and MemVerge cannot agree, an arbitrator appointed in accordance with the JAMS rules who shall be experienced in the type of dispute at issue. Customer and MemVerge, their representatives, the arbitrator, and other participants shall keep confidential the existence, content, and result of the arbitration. Any demand for arbitration and any counterclaim must specify in reasonable detail the facts and legal grounds forming the basis for the claimant’s claims and include a statement of the total amount of damages claimed, if any, and any other remedy sought by the claimant. The arbitration will be conducted in the English language; the location of such arbitration shall be in Milpitas or San Jose, California. Each party will bear its own costs in the arbitration. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in the Agreement. Judgment upon the award may be entered in any court of competent jurisdiction. Notwithstanding the agreement to arbitrate, each party may apply at any time to a court of competent jurisdiction for appropriate injunctive relief or for other interim or conservatory measures, and by doing so will not breach or waive the agreement to arbitrate or impair the powers of the arbitrator.

15.5 Class Action Waiver. YOU AND MEMVERGE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You and MemVerge each agree that such proceeding shall take solely by means of judicial reference pursuant to California Code of Civil Procedure section 638.

15.6 Exceptions. Notwithstanding the agreement to resolve all disputes through arbitration, you or MemVerge may bring suit in court to enjoin infringement or other misuse of intellectual property rights (including patents, copyrights, trademarks, trade secrets, and moral rights, but not including privacy rights). You or MemVerge may also seek relief in small claims court for claims within the scope of that court’s jurisdiction. In the event that the arbitration provisions above are found not to apply to you or to a particular claim, either as a result of your decision to opt-out of the arbitration provisions or as a result of a decision by the arbitrator or a court order, you agree that the exclusive venue for any such claim or dispute is set forth in Section 15. You and MemVerge agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims or any other disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms or your use of the Services in the event that the arbitration provisions are found not to apply. In such a case, should MemVerge prevail in litigation against you to enforce its rights under these Terms, MemVerge shall be entitled to its costs, expenses, and reasonable attorneys’ fees (whether incurred at or in preparation for trial, appeal or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which MemVerge may be entitled.

15.7 Restrictions. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF CUSTOMER OR MEMVERGE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN CUSTOMER OR MEMVERGE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH HEREIN) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED. “Commencing” means, as applicable: (i) by delivery of written notice as set forth herein; (ii) filing for arbitration with JAMS as set forth herein; or (iii) filing an action in state or federal court. This provision will not apply to any legal action taken by MemVerge to seek an injunction or other equitable relief in connection with any losses (or potential losses) relating to the Services, intellectual property rights of MemVerge, and/or MemVerge’s provision of the Services.