Grotabyte END USER LICENSE AGREEMENT (EULA)

Please review our license agreement below and click to accept the terms upon completion.  Once you’ve entered your information and accepted the terms, a confirmation email will be sent to you along with to our project management team who will reach out to you and schedule the installation kick off call.

Updated Sep 9, 2020

YOUR USE OF THIS SOFTWARE, INSTALLATION OF THIS SOFTWARE OR CONTINUING SOFTWARE INSTALLATION PAST THIS NOTICE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. YOU SHOULD READ THIS AGREEMENT IN FULL BEFORE CONTINUING.
 

Grotabyte, Inc. is a Delaware corporation. This license agreement (“Agreement”) is a legal agreement between the end user (“You” or “Licensee”) and Grotabyte Consulting Service (“Licensor”) for completion of a project or projects defined in the purchasing process for the use of Grotabyte products (“Intended Purpose”). For the purpose of this Agreement, the date of this Agreement (the “Delivery Date”) is deemed as today, being the date when the software is installed on the designated computing hardware where it will execute (the “Equipment”). By installing, copying, or otherwise using Grotabyte products, data storage, associated documentation or any updates or patches provided from time to time (“Software”), you acknowledge that you have read and understood this Agreement in whole, and agree to be bound by its terms and conditions. If you cannot comply or do not agree with this Agreement, you must terminate the installation, remove the software from your Equipment, and destroy any remaining copies of the Software. If you cannot or do not agree to be bound by this Agreement, you agree not to use the Software in any form.
 

1. Definitions.

  • “Grotabyte” shall mean Grotabyte, Inc., its officers, employees, directors, shareholders, suppliers and agents, with offices located at 4353 North First Street, Suite 100, San Jose, CA

  • “Licensor” has the meaning set forth in the

  • “Licensee” has the meaning set forth in the

  • “End User” shall mean the individual, company, or legal entity that will be utilizing the

  • “Authorized User” means Licensee’s employees, consultants, contractors, and agents (i) who are authorized by Licensee to access and use the Services under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Services has been purchased

  • “Software” has the meaning set forth in the

  • “Term” has the meaning set forth in Section

  • “Documentation” means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the

  • “Intellectual Property” shall mean any and all intellectual property or proprietary rights of any kind, in any jurisdiction throughout the world, including, but not limited to, (a) patents, patent disclosures and inventions and all improvements thereto, and any reissue, continuation, continuation-in-part, divisional, extension or re-examination thereof, (b) rights in works of authorship, copyrights and copyrightable works, (c) trademarks, service marks, trade dress, trade names, corporate names, logos, slogans, and other indicia of origin and all goodwill associated therewith (collectively “Trademarks”), (d) internet domain names, and rights in websites, universal resource locators, handles and/or other names and locators associated with the Internet, (e) registrations, applications for registration, and renewals of any of the foregoing, (f) trade secrets, know-how, technologies, databases, processes, techniques, protocols, plans, methods, formulae, recipes, discoveries, compositions, research and development information, algorithms, layouts, designs, drawings, industrial models, architectures, specifications, financial, business and marketing plans and proposals, customer or supplier lists, price and cost information and other confidential information of any kind, and/or (g) all other intellectual property and proprietary rights whether registered, applied for, or at common

  • “Laws” shall mean all international, State, and Federal laws, standards, guidelines, policies, regulations, and procedures, as

  • “License” has the meaning set forth in the

  • “Third Party” means any Person other than Licensee or
     

2. Grant of License.

Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users the Software and Documentation, solely as set forth in this Section, subject to all conditions and limitations set forth in Section 6 or elsewhere in this Agreement. The Software and Documentation that accompanies this license is the property of Licensor and is protected by copyright law. While Licensor continues to own the software, End User will have certain rights to use the Software upon acceptance of this license. This license governs any releases, revisions, or enhancements to the Software that Grotabyte may furnish to End User.
 

Grotabyte hereby grants End User a non-exclusive, non-transferable right and license to:

  • Install both the Software and any (Grotabyte-approved End User requested) Software updates on single or multiple computers, desired cluster nodes, virtual servers or virtual server clusters. End User may transfer data only for the number of Authorized Users shown in End User’s invoice from Grotabyte, as applicable (“Grotabyte Invoice”), to available targets in configuration;
    Note: installation of Software on additional test nodes or servers or disaster recovery nodes or servers is permissible upon written notice to Grotabyte and payment of an additional fee.

  • Permit authorized users and administrators to access and use the Software, solely for End User’s internal business purposes, and subject to all of the restrictions and limitations contained herein;

  • Delete the Software from one server and reinstall it on another upon written notice to Grotabyte

  • Make a reasonable number of backup copies of both the Software and any (Grotabyte-approved End User requested) Software updates for archival purposes only, provided that the copy contains all proprietary notices; and

  • After written notice to Grotabyte, transfer the Software on a permanent basis to another entity, provided that End User retains no copies of the Software and the Software and may retain non-production copies of the Software which have been automatically archived or retained pursuant to applicable law, regulation or internal policy.
     

End User is not licensed to:
 

  • Sublicense, rent, or lease any portion of this Software; or

  • Reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from the Software; or

  • Use the Software in any manner not authorized by this license.
     

3. Copyright.

The Software is owned by Grotabyte or its licensors and is protected by the United States copyright laws and international treaty provisions. Except for the limited license granted to End User in Section 1 above, Grotabyte and its licensors shall retain all, and End User shall not obtain or claim any, intellectual property rights in the Software, all copies and derivative works thereof, by whomever produced, including but not limited to all changes and improvements requested or suggested by End User in the support and maintenance of the Software.

Grotabyte respects others’ intellectual property rights and has made every effort to secure appropriate clearances for all proprietary intellectual properties that Grotabyte directly makes available on its portal and in the Software. Please notify Grotabyte of any possible claims of infringements. The Software is being licensed to the End User, not sold.
 

4. Trade Secrets and Confidential Information.

Each party acknowledges that the other party has substantial proprietary rights, including valuable trade secrets, copyrights, and pending patent applications in the Software and its other business and proprietary information. By virtue of this License Agreement, each party will be exposed to such trade secrets as well as other proprietary ideas, concepts, techniques, and methodologies of the other party (collectively, “Confidential Information”). Confidential Information will not include: (a) information that is or becomes generally publicly available, other than as a result of the receiving party’s breach of this License Agreement; (b) is or becomes available to the receiving party without an obligation of confidence from a source (other than the disclosing party) having the legal right to disclose the information; or (c) was or is independently developed by or for the receiving party, without reference to or use of, in whole or in part, any of the disclosing party’s Confidential Information. Each party agrees that it will use commercially reasonable efforts to secure and protect the Confidential Information (including, without limitation, the Software) to maintain the disclosing party’s proprietary rights, including but not limited to instructing and having appropriate agreements with employees and contractors. The receiving party further agrees that it will not use or disclose any of the disclosing party’s Confidential Information except as expressly required to carry out the purposes of this License Agreement or as otherwise permitted under this License Agreement, and will not, except as otherwise permitted under this License Agreement, disclose, issue, or publish any comparative analysis, benchmark data, or other performance information resulting from or regarding End User’s use of the Software without Grotabyte’s prior written permission.

Each party may disclose the disclosing party’s Confidential Information to its employees, officers, directors, managers, equity holders, agents, and advisors (“Representatives”) who are informed of the confidential nature of the Confidential Information, and who are obligated to keep it confidential on terms substantially similar to those contained herein. In any event, the receiving party will be responsible for any breach of this License Agreement caused by any of its Representatives. In the event that the receiving party or any of its Representatives are requested or become legally compelled (pursuant to legal process) to disclose any of the disclosing party’s Confidential Information, the receiving party and/or its Representative(s) may disclose any such information to the extent of such request or requirement without liability hereunder; provided, that, except for disclosures made in the course of a regulatory examination, audit or inspection (for which no notice shall be required) and to the extent permitted by applicable law, the receiving party agrees to provide the disclosing party with prompt written notice of such request so that the disclosing party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this License Agreement.
 

5. Support.

For Software support information and policies please refer to the Grotabyte General Release Products Service Level Agreement. Grotabyte shall provide support to End User in accordance with the Service Level Agreement for the duration of the term of this License Agreement.


6. Prohibited Uses.

End User acknowledges that it may only use the Software for the limited purposes set forth above and may not, except as otherwise expressly permitted hereunder, sell or sublicense to a third party, rent, lease, transfer, distribute, publish, reproduce, copy, display, adapt, modify, or prepare derivative works from the Software or any part thereof. End User may not attempt to decipher, reverse engineer, disassemble, or decompile the Software, nor use the results of such processes, except to the extent applicable law specifically prohibits such restrictions, and then only if End User notifies Grotabyte of its requirements with respect to interoperability or functional compatibility before engaging in reverse engineering and give Grotabyte the opportunity to provide End User the information necessary to achieve such interoperability or compatibility without reverse engineering. End User may not reproduce, deactivate, or bypass any security devices supplied with the Software. End User may not remove or in any other way alter or obscure any copyright notice or other notice of Grotabyte’s proprietary rights. End User may not use the Software as part of a service bureau, application service provider operation, or time-sharing facility for third parties. End user agrees that Grotabyte may collect, transmit and use information collected in connection with the use of the Software subject to the terms of Grotabyte’s Privacy Policy found at https://Grotabyte.com/privacy-policy/ This information may include registration information, IP numbers, and information about End Users’ computers.
 

7. End User Representations, Warranties & Indemnification.

End User represents and warrants to Grotabyte that: (a) End User has all requisite power and authority to enter into this License Agreement and to execute, deliver and perform all obligations under this License Agreement; (b) End User has provided, and will continue to provide information required to be provided under this License Agreement that is correct and current; (c) End User performance under this License Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreements, to which End User is currently bound or will become bound in the future; (d) End User performance under this License Agreement and use of the Software will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; and (e) End User will participate solely for the purposes intended and expressly permitted.

The following applies only in the absence of a separate support certificate (with included support warranty) issued by Grotabyte: Grotabyte warrants, for a period of ninety (90) days from the date of performance of Maintenance/Support, that such Maintenance/Support will be performed with reasonable care and skill. For Maintenance/Support not performed as warranted in this provision and provided End User has reported such nonconformance to Grotabyte within ninety (90) days of performance of such non-conforming Maintenance/Support, Grotabyte will, at its discretion, either promptly correct any nonconforming Maintenance/Support or promptly refund the relevant fees paid for the nonconforming Maintenance/Support. THE FOREGOING IS END USER’S SOLE AND EXCLUSIVE REMEDY FOR GROTABYTE’s BREACH OF THIS WARRANTY.
 

Grotabyte warrants to End User and only to End User that the products and proprietary information, do not infringe or misappropriate any third party’s United States copyright, trade secret, or patent, trademark and/or trade name. Grotabyte shall pay all damages and costs finally awarded against End User by law upon a claim directly attributable to a breach by Grotabyte of this warranty, conditioned upon the following: (i) End User has given Grotabyte prompt written notice of the claim (provided that failure to give or delay in giving such notice shall not relieve Grotabyte of its obligations hereunder except to the extent it shall have been prejudiced by such failure or delay), and (ii) Grotabyte has sole control of the defense and/or settlement of such claim or any action thereon and all related negotiations (provided that Grotabyte will not settle, or consent to any entry of judgment in, any proceeding without obtaining either: (a) an unconditional release of End User and each of its respective officers, directors, managers, employees and agents from all liability with respect to all claims or actions underlying such proceeding and provided that such settlement or consent only requires the payment of money for which End User is not responsible), and (iii) End User provides reasonable cooperation to Grotabyte in connection with such defense and/or settlement and in connection with Grotabyte’s exercise of Grotabyte’s options set forth in the following paragraph at Grotabyte’s expense. If the products or proprietary information, or the operation thereof, becomes, or in Grotabyte’s business judgment are likely to become the subject of a claim of infringement or misappropriation of a patent, copyright or trade secret, trademark and/or trade name, or the subject of an action upon such a claim, End User shall permit Grotabyte, at Grotabyte’s option and sole expense, to do any one or more of the following: (i) procure for End User and its customers the right to continue to use the products and proprietary information, or (ii) replace or modify the products and proprietary information so that they become non-infringing provided that such non-infringing version shall be an equivalent substantially comparable in functionality), or (iii) repay End User the price received by Grotabyte from End User for such products upon End User’s de-installation thereof, at Grotabyte’s request.


Grotabyte’s Indemnification of End User
 

  • Grotabyte agrees to indemnify, defend and hold End User harmless from claims made against End User that the Grotabyte product or offering infringe or misappropriate an intellectual property right of a third party. Grotabyte’s obligations under this provision are subject to End User’s doing the following: (a) notifying Grotabyte of the claim in writing, as soon as End User learns about it (provided that failure to give or delay in giving such notice shall not relieve Grotabyte of its obligations hereunder except to the extend it shall have been prejudiced by such failure or delay); (b) providing Grotabyte all reasonable assistance and information to enable Grotabyte to perform its duties under this section at Grotabyte’s expense (c) allowing Grotabyte sole control of the defense and related settlement negotiations (provide that Grotabyte will not settle, or consent to any entry of judgment in, any proceeding without obtaining either: (i) an unconditional release of the End User and each of its respective officers, directors, managers employees and agents from all liability with respect to all claims or actions underlying such proceeding and (ii) provided that such settlement or consent only requires the payment of money for which End User is not responsible); and (d) not having compromised or settled such claim.

  • Grotabyte shall have no obligation to indemnify the End User for any claim that is based on: (a) modification of the Grotabyte Product or offering other than by or for Grotabyte or as otherwise authorized by Grotabyte in writing (which may be by email); (b) continued use of an infringing Grotabyte product or offering after Grotabyte supplied or offered to supply modified or replacement non-infringing Grotabyte product or offering after Grotabyte supplied or offered to supply modified or replacement non-infringing Grotabyte product or offering as contemplated in this Section; (c) use of the Grotabyte product or offering other than in accordance with the documentation and this Agreement; (d) combination, use or operation of the Grotabyte product or offering with any software, hardware, data or other materials (i) not specifically authorized by Grotabyte to be combined with the Grotabyte product or offering as listed in the documentation, or (ii) required to enable End User to enjoy the essential function of the Product or offering, and where such infringement would not have occurred but for such combination, use or operation.If the Grotabyte product or offering is held or may be held, in Grotabyte’s opinion, to infringe, Grotabyte shall at its discretion: (a) obtain for the End User the right to continue use the applicable Grotabyte product or offering under the terms of this License Agreement; (b) modify the Grotabyte product or offering to be non-infringing (provided that the modified version shall be equivalent substantially comparable in functionality) or replace it with a non-infringing equivalent substantially comparable in functionality, in which case End User shall stop using any infringing version of the Grotabyte product or offering; or, if Grotabyte determined in its sole opinion that (a) and.or (b) are not commercially reasonable, then (c) terminate End User’s authorization to use such the applicable Grotabyte product or offering as set forth in this License Agreement. In the case of such a termination, then Grotabyte shall promptly issue a refund to End User for the relevant fees paid for the affected product or offering.
     

NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THIS SECTION STATES END USER’S SOLE AND EXCLUSIVE REMEDY AND GROTABYTE’S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE PRODUCT OR OFFERING MADE AVAILABLE TO END USER UNDER THIS LICENSE AGREEMENT AND THE INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY ON ACCOUNT THEREOF.
 

End User’s Indemnification of Grotabyte
 

End User shall indemnify, defend and hold harmless Grotabyte its officers, employees, directors, shareholders, suppliers, and agents from any losses, claims, demands, actions, causes of action, suits, costs, attorney’s fees, damages, expenses, compensation, penalties liabilities or obligations of any kind(including attorneys’ fees) (collectively “Losses”) asserted by a third party against Grotabyte arising from (i) End User’s use or distribution of any product or offering not provided by or for Grotabyte or not otherwise required to enable End User to enjoy the essential function of the product or offering but used in combination with the Grotabyte product, if such claim would have been avoided by the exclusive use of the Grotabyte Product; and (ii) End User’s (including its representative’s) breach of any of the End User obligation under this Agreement. In addition, End User shall indemnify, defend and hold harmless Grotabyte, its officers, employees, directors, shareholders, suppliers and agents, from any Losses that arise out of or relate to (i) End User’s sale or distribution of any Grotabyte Software/Services or (ii) breach of its privacy obligations set forth in Section 5 of this Agreement; provided that End User’s obligations under this section (ii) in this paragraph shall be relieved to the extent of gross negligence or intentional misconduct of Grotabyte.

8. Grotabyte Limited Warranty.
 

Grotabyte represents, warrants and covenants that, when downloaded or used by End User, the Software will not contain (a) any computer virus, malware, software lock, “kill switch” or other drop-dead device or (b) any method of gaining access to the same or other End User computer resources or data such as master access keys, identification, password, or trap doors.

Grotabyte warrants that, for a period of ninety (90) days from the later of (a) date of purchase reflected on the Grotabyte invoice and (b) successful installation of the Software, the Software will operate in all material respects in substantial conformity with its published specifications. Grotabyte also warrants that the Software to be furnished under this License Agreement shall be delivered free and clear of any claim of any third party of infringement of any patent, copyright, trademark or other proprietary rights.

GROTABYTE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. END USER IS SOLELY RESPONSIBLE FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE END USER’S INTENDED RESULTS AND FOR THE RESULTS ACTUALLY OBTAINED. PROVIDED THAT THE FOREGOING DOES NOT OTHERWISE AFFECT GROTABYTE’S OBLIGATIONS UNDER THIS LICENSE AGREEMENT.
 

9. Exclusive Remedy.

Grotabyte’s entire liability and End User’s exclusive remedy shall be, at Grotabyte’s option, either (a) return of the price paid or (b) prompt repair or replacement of the Software that does not meet the Grotabyte limited warranty in Section 7. This limited warranty is void if failure of the Software has resulted from accident, abuse, or misapplication by End User or a person for which End User is responsible. Any replacement Software will be warranted for the remainder of the original warranty period or ninety 90 days, whichever is longer.
 

10. No Other Grotabyte Warranties.

EXCEPT AS EXPRESSLY SET FORTH IN THIS LICENSE AGREEMENT, GROTABYTE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO THE SOFTWARE OR ITS CHARACTERISTICS, QUALITY, PERFORMANCE, OR VALUE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS LICENSE AGREEMENT, ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EU, RESTRICT THE RIGHT TO EXCLUDE CERTAIN WARRANTIES; THEREFORE, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO END USER.
 

11. No Liability for Damages.

EXCEPT FOR (A) THE REFUND INDICATED ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, (B) THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS AGENTS AND (C) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS LICENSE AGREEMENT, EACH PARTY ITS EMPLOYEES, ITS AGENTS, AND ITS SUPPLIERS SHALL NOT BE LIABLE UNDER THIS LICENSE AGREEMENT FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE LICENSE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. NEITHER PARTY SHALL BE RESPONSIBLE TO THE EXTENT OF MATTERS BEYOND ITS REASONABLE CONTROL (“FORCE MAJEURE EVENT”); PROVIDED THAT, END USER’S OBLIGATION TO PAY FEES WILL BE RELIEVED TO THE EXTENT OF GROTABYTE’S INABILITY OR FAILURE TO PROVIDE ANY SERVICE DURING A FORCE MAJEURE EVENT AFFECTING GROTABYTE.

The foregoing limitations of liability shall not apply to claims for intellectual property infringement or breach of confidentiality.
 

12. Registration.

The license rights granted under this License Agreement require End User to access the Software. Registration may be accomplished by following the onscreen prompts that appear on Grotabyte’s portal. Registration information is subject to Grotabyte’s Privacy Policy which can be found https://Grotabyte.com/privacy-policy/ to which End User consent occurs by registering on Grotabyte’s portal. Internet access and a computer with certain specifications are required to access the Software
 

13. Export Restrictions; Legal Compliance.

End User agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to assure that neither the Software nor any direct product thereof is (a) exported directly or indirectly, in violation of Export Laws; or (b) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation. If the Software has been rightfully obtained by End User outside of the United States, End User agrees not to re- export such Software or any related technical information except as permitted by the laws and regulations of the United States and those of the jurisdiction in which End User obtained such Software.

Grotabyte represents, warrants and covenants that it shall comply with all applicable laws and regulations related to its performance under this License Agreement.
 

14. Term and Termination.

This License Agreement shall remain in effect until terminated. In the event of End User’s breach of this License Agreement and failure to cure such breach within 10 business days’ of Grotabyte’s delivery to End User of written notice thereof, this License Agreement will be terminated immediately, upon written notice from Grotabyte to End User. Upon termination of this License Agreement, each party must use commercially reasonable efforts to destroy all Confidential Information (including the Software) and any copies or portions thereof; provided that each party may retain copies of the other party’s Confidential Information which have been automatically archived or retained pursuant to applicable law, regulation or internal policy; provided that any retained Confidential Information shall continue to be held confidentially under this License Agreement. End User may terminate this License Agreement at its own discretion at any time by using commercially reasonable efforts to destroy the Software or by giving notice in writing that it has complied with the obligations set forth in this section.

This License Agreement shall become effective only upon its execution by both Grotabyte and End User.

All provisions of this License Agreement that are reasonably construed as surviving termination of this License Agreement, including, without limitation, each party’s indemnification obligations hereunder, shall survive the termination of this License Agreement.
 

15. Additional Software/Services.

This License Agreement applies to all updates, supplements or add-on components of the Software that Grotabyte may provide to End User or make available to End User after the date End User registers on Grotabyte’s portal, unless the parties agree in writing to the contrary. Grotabyte reserves the right to discontinue End User access to the Software, in whole or in part. In the case of such a discontinuation, then Grotabyte shall promptly issue a refund to End User for the relevant fees paid for the affected Software.
 

16. Governing Law.

Unless otherwise agreed in writing, all disputes relating to this License Agreement (except any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in the State of Delaware, USA, in accordance with the Licensing Agreement Arbitration Rules of the American Arbitration Association, with the losing party paying all costs of arbitration. Arbitration must be by a member of the American Arbitration Association. If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs, including reasonable attorney fees, associated therewith. In the event that any of the provisions of this License Agreement shall be held by an arbitrator, court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this License Agreement shall otherwise remain in full force and effect and enforceable.

17. Notices.

All notices, requests, consents, claims, demands and waivers hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the signature page of this License Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this License Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.

18. General Terms.

Any delay or failure on the part of either party to exercise or enforce any right under this License Agreement to which it may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. Each party agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this License Agreement must be filed in an appropriate tribunal within one (1) year after such claim or cause of action arose or be forever barred. Neither party may assign or transfer this License Agreement absent the other party’s written consent (at its sole discretion) and any purported assignment or transfer made in violation of this section is void. This License Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. This Agreement, together with the Service Level Agreement and a Grotabyte Invoice executed and delivered by End User, constitutes the sole and entire agreement of the parties to this License Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This License Agreement supersedes any “click-through” or “shrink-wrap” agreement purporting to bind End User. This License Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Any signature page delivered electronically or by facsimile (including, without limitation, transmission by .pdf, other fixed imaged form, or DocuSign) will be binding to the same extent as an original signature page. Grotabyte shall not make any public announcement in respect of, or otherwise publicize, this License Agreement or the relationship created hereby without the prior written consent of End User, which consent may be given or withheld at End User’s sole discretion.

I have read and agree to the terms of the Grotabyte End User License Agreement above.

Grotabyte End User License Agreement Submitted!