Cloudian™ EVALUATION AGREEMENT

IT IS IMPORTANT THAT YOU READ THIS AGREEMENT CAREFULLY AND COMPLETELY. THIS EVALUATION AGREEMENT ("AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN THE COMPANY IDENTIFIED BY YOU IN THE "COMPANY NAME" FIELD AT THE BOTTOM OF THIS PAGE ("EVALUATOR") AND GEMINI MOBILE TECHNOLOGIES, INC., A DELAWARE CORPORATION ("GMT"). BY CHECKING THE "I HAVE READ AND AGREE TO THE AGREEMENT" AND/OR CLICKING THE "SUBMIT"BUTTON ON THIS PAGE, OR BY DOWNLOADING, INSTALLING OR USING ANY PORTION OF THE CLOUDIAN™ SOFTWARE, YOU ARE REPRESENTING TO GMT THAT EVALUATOR IS A CORPORATION OR OTHER BUSINESS ENTITY, YOU ARE BINDING EVALUATOR TO THE TERMS OF THIS AGREEMENT, AND YOU ARE REPRESENTING TO GMT THAT YOU ARE DULY AUTHORIZED BY EVALUATOR TO DO SO. IF EVALUATOR IS NOT A CORPORATION OR OTHER BUSINESS ENTITY, IF YOU ARE NOT AUTHORIZED TO BIND EVALUATOR TO THE TERMS OF THIS AGREEMENT, OR IF EVALUATOR DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE "I HAVE READ AND AGREE TO THE AGREEMENT" BOX, DO NOT CLICK THE "SUBMIT" BUTTON, AND DO NOT DOWNLOAD, INSTALL OR USE ANY PORTION OF THE CLOUDIAN™ SOFTWARE.

1. DEFINITIONS

1.1 "Designated Site" means that single facility of Evaluator, the address of which is identified as the "Company Physical Address" at the time Evaluator's request for an evaluation license to the Licensed Software was submitted to GMT.

1.2 "Documentation" means any documentation or other materials related to the Licensed Software that may be provided by GMT to Evaluator pursuant to this Agreement.

1.3 "Evaluator System" means the computer system identified as the "Test System" at the time Evaluator's request for an evaluation license to the Licensed Software was submitted to GMT.

1.4 "Intellectual Property Rights" means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (a) rights associated with works of authorship worldwide, including, without limitation, copyrights, moral rights and mask works; (b) trademark, service mark and trade name rights, and similar rights; (c) trade secret rights; (d) inventions, patents, designs, algorithms and other industrial property rights; and (e) all other intellectual and industrial property rights (of every kind and nature worldwide) (including, without limitation, logos, "rental" rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise.

1.5 "Licensed Software" means the software products identified as "Cloudian™", solely in machine readable, object code form, and any Updates thereto that GMT, in its discretion, may provide to Evaluator. For avoidance of doubt, "Licensed Software" does not include any Third Party Software.

1.6 "Test Plan" means the schedule and procedures for Evaluator's evaluation of the Licensed Software, which were provided to GMT at the time Evaluator's request for an evaluation license to the Licensed Software was submitted to GMT.

1.7 "Third Party Software" means any software that GMT may provide to Evaluator together with a separate license terms that govern such software.

1.8 "Updates" means modifications, error corrections, bug fixes, new releases, upgrades and other revisions.

2. IMPLEMENTATION

Evaluator will install and implement the Licensed Software on the Evaluator System at the Designated Site.

3. LICENSE GRANT

Subject to the terms and conditions of this Agreement, GMT hereby grants to Evaluator a restricted, non-exclusive, personal, non-transferable, non-sublicensable, revocable license to use a single copy of the Licensed Software (as installed on the Evaluator System) and the Documentation at the Designated Site during the term of this Agreement, solely in a non-production capacity to perform the testing and evaluation procedures specified in the Test Plan in accordance with the terms thereof.

4. OTHER LIMITATIONS

4.1 License Restrictions. Evaluator shall not, and shall have no right to: (a) copy the Licensed Software or the Documentation; (b) distribute or otherwise provide the Licensed Software or the Documentation to any third party; (c) grant any license, sublicense or other rights in or to the Licensed Software or the Documentation; (d) use the Licensed Software or the Documentation except as expressly set forth in Section 3; (e) create derivative works of, translate, adapt or otherwise modify the Licensed Software or the Documentation; (f) decompile, disassemble or reverse engineer the Licensed Software, or any portion thereof, or otherwise attempt to derive or extract any source code, ideas, algorithms, procedures, workflows or hierarchies from the Licensed Software; (g) transfer the Licensed Software or the Documentation to any site other than the Designated Site; (h) perform, or release results of, any benchmark tests or other comparisons of the Licensed Software with any other software to any third party without the prior written approval of GMT for each such performance or release; or (i) authorize, instruct or assist any third party to perform any of the foregoing activities.

4.2 Proprietary Markings. Evaluator shall not remove, alter, cover or obfuscate any such notices placed on or in the Licensed Software or Documentation.

4.3 Injunctive Relief. Evaluator acknowledges and agrees that any breach by Evaluator of any of its obligations under Section 4.1 will cause irreparable injury to GMT and that, in addition to any other remedies that may be available at law, in equity or otherwise, GMT shall be entitled to obtain injunctive relief against such breach or threatened breach or the continuation of such breach by the Evaluator, without the necessity of proving actual damages or posting a bond or security.

4.4 Third Party Software. For avoidance of doubt, the license set forth in Section 3 does not apply to any Third Party Software, all of which is provided to Evaluator pursuant to separate licensing terms. For example, and without limitation of the foregoing, OpenStack is licensed under the terms of the Apache 2.0 license (see www.openstack.org), and S3cmd is licensed under the terms of the GNU Public License version 2 (see www.s3tools.org/s3cmd).

5. TECHNICAL SUPPORT

GMT shall have no obligation to support the Licensed Software or any Third Party Software in any way, or to provide any Updates to the Licensed Software or any Third Party Software.

6. PROPRIETARY RIGHTS

Evaluator acknowledges and agrees that, as between GMT and Evaluator, GMT and/or its licensors own and shall retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to the Licensed Software and the Documentation. Except as expressly set forth in Section 3 of this Agreement, GMT grants no licenses or other rights in or to the Licensed Software or Documentation, whether by implication, estoppel, or otherwise, to Evaluator. All rights not expressly granted to Evaluator are retained by GMT or its licensors.

7. WARRANTY DISCLAIMER

THE LICENSED SOFTWARE, THIRD PARTY SOFTWARE AND DOCUMENTATION AND ARE PROVIDED "AS IS". GMT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, THIRD PARTY SOFTWARE, DOCUMENTATION OR ANY OTHER PRODUCTS, SERVICES OR MATERIALS PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, ACCURACY OR NONINFRINGEMENT, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Without limiting the generality of the foregoing, GMT does not represent or warrant that the Licensed Software, Third Party Software or any services provided by GMT will meet the requirements of Evaluator (even if such requirements are known to GMT), or will be uninterrupted or error free.

8. LIMITATION OF LIABILITY

IN NO EVENT WILL GMT BE LIABLE TO EVALUATOR OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA OR BUSINESS, EVEN IF GMT HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. GMT'S AGGREGATE LIABILITY TO EVALUATOR ARISING OUT OF OR IN CONNECTION WITH THE LICENSED SOFTWARE, THIRD PARTY SOFTWARE, DOCUMENTATION AND ALL OTHER ASPECTS OF THIS AGREEMENT SHALL NOT EXCEED FIVE HUNDRED UNITED STATES DOLLARS (US$500). GMT SHALL HAVE NO LIABILITY WITH RESPECT TO CLAIMS RELATING TO OR ARISING FROM THE USE OF NON-GMT PRODUCTS AND SERVICES, EVEN IF GMT HAS RECOMMENDED, REFERRED OR INTRODUCED EVALUATOR TO SUCH PRODUCTS AND SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

9. TERM AND TERMINATION

9.1 Term. Unless sooner terminated, this Agreement shall be in effect for the thirty (30) day period commencing on the day the Licensed Software was delivered or otherwise made available to Evaluator, and shall expire at the end of such period.

9.2 Termination. Either party may terminate this Agreement any time at its sole discretion upon five (5) days' written notice to the other party. In addition, either party may terminate this Agreement immediately upon written notice to the other party if the other party commits a breach of any material term or condition of this Agreement.

9.3 Effect of Termination. Upon any expiration or termination of this Agreement:

(a) All rights, licenses and obligations of the parties under this Agreement shall immediately terminate;

(b) Evaluator shall promptly remove, delete and purge all copies of the Licensed Software and Documentation from all electronic devices, computer systems and storage media in or under the possession or control of Evaluator (including, without limitation, the Evaluator System and any storage devices contained therein)

(c) the provisions of Sections 4, 6, 7, 8, 9.3, 9.4 and 10 shall survive; and

(d) neither party shall be relieved of any liability incurred under this Agreement prior to such termination.

9.4 No Liability. In the event of any termination of this Agreement by either party in accordance with any of the provisions of this Agreement, neither party shall be liable to the other party because of such expiration or termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investment, leases or commitments in connection with the business or goodwill of GMT or Evaluator.

10. GENERAL PROVISIONS

10.1 Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, (a) the parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties' intent in entering into this Agreement, and (b) the remainder of this Agreement shall remain in full force and effect.

10.2 Assignment. Evaluator may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations under this Agreement, whether voluntarily, by operation of law or otherwise, without the prior written consent of GMT. Any such attempted prohibited assignment, delegation or other transfer shall be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of each party's successors and assigns.

10.3 Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

10.4 No Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by each party. No course of dealing, course of performance or failure of either party to enforce any provision of this Agreement in a strict or timely manner shall be construed as a waiver of such provision or any other provision. No waiver or breach of any provision of this Agreement shall be construed to be a waiver of any subsequent breach of the same or any other provision.

10.5 Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.

10.6 Interpretation. The captions and headings used in this Agreement are inserted for convenience only, do not form a part of this Agreement and shall not be used in any way to construe or interpret this Agreement. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be regarded as one and the same instrument.

10.7 Language. This Agreement has been prepared and shall be construed in English, and any translation of this Agreement shall be for purpose of reference only.

10.8 Entire Agreement; Amendment. This Agreement hereto (which are hereby incorporated by reference) contain the entire agreement of the parties with respect to the subject matter hereof and supersede any and all related prior understandings, agreements, representations, negotiations and discussions, whether oral or written. This Agreement cannot be modified or amended except in a writing signed by both parties.