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Effective Date: August 15, 2024
This End User License Agreement (this “Agreement”) dated the Effective Date first set forth above, is entered into by and between Grid Raster, Inc., a Delaware corporation, located at 1931 Old Middlefield Way, Suite G, Mountain View, CA 94043 (“GridRaster”), and the customer named above (“Customer”). This Agreement shall govern Customer’s use of certain Licensed Items (as defined below) provided by GridRaster.
a. License. During the Term (as defined below), GridRaster grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the Licensed Items solely for Customer’s internal business use only with access limited to Authorized Users, and further subject to the limitations set forth herein.
b. Limitations. Customer is strictly prohibited from: (i) licensing, sublicensing, selling, reselling, transferring, assigning, distributing or otherwise commercially exploiting or making available to any third party any of the Licensed Items in any way not expressly permitted herein; (ii) modifying or making derivative works based upon any of the Licensed Items; (iii) decompiling, disassembling, decompressing, reverse engineering, or otherwise attempting to derive the source code for any portion of the Licensed Items; (iv) creating or developing or contributing to the creation or development of any service, program or suite of programs having similar ideas, features, functions and/or graphics as the Licensed Items; and/or (v) disrupting the integrity or performance of any of the Licensed Items or attempting to gain unauthorized access to the Licensed Items or related systems or networks.
c. Ownership. Customer hereby acknowledges and agrees that GridRaster and its Affiliates and/or licensors own all right, title and interest in the Licensed Items and the GridRaster Technology. The Agreement does not constitute a sale and does not convey to Customer any rights of ownership in or related to any Licensed Items or any GridRaster Technology. All rights not expressly granted to Customer under this Agreement are reserved by GridRaster. The GridRaster name, the GridRaster logo, and the product names associated with the Licensed Items are trademarks of GridRaster or third parties, and no right or license is granted herein to use them. Furthermore, GridRaster shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Licensed Items any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) provided by Customer or its Authorized Users relating to the Licensed Items, provided that such Feedback does not contain any of Customer’s Confidential Information. Additionally, GridRaster shall have no obligation to modify the Licensed Items to implement any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users and Customer further agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by GridRaster regarding future functionality or features.
d. Trial Licenses. If GridRaster makes any of its products and services available to Customer as part of a free or limited trial, those products and services will be considered “Licensed Items” under this Agreement, even if the products and services are not specified in an Ordering Document. Any such free trial will end at the earlier of: (i) the end of the free trial period, (ii) the start date of any subscriptions purchased by Customer for such Licensed Items, or (iii) termination by GridRaster in its sole discretion.
Additional trial terms and conditions may be applicable and will be communicated at the time of trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Any data or content entered into the Licensed Items and any customizations made to the Licensed Items by or for Customer during a free trial will be permanently lost unless Customer subscribes for a subscription to the same Licensed Items as those covered by the trial, or export such data, before the end of the trial period. In connection with any trial, and notwithstanding anything to the contrary in this Agreement or relevant Ordering Document, GridRaster provides the Licensed Items “AS IS,” without any warranty, covenant, commitment or liability whatsoever, to the extent permitted by law. Customer hereby agrees that it shall review any applicable Licensed Items’ documentation provided by GridRaster during the trial period so that Customer is familiar with the features and functions of the Licensed Items before the final subscription.
a. Term and Termination. The term of Customer’s license to use the Licensed Items shall commence on the Effective Date and shall continue for the period of time set forth in an Ordering Document (the “Term”), unless terminated earlier as set forth herein.
b. Termination for Breach. In the event that Customer breaches any term or condition of this Agreement in any material respect, GridRaster shall have the right to terminate this Agreement and Customer’s license hereunder if Customer has not: (i) commenced using its reasonable, good faith efforts to cure the breach within ten (10) days after the date upon which the Customer was given written notification of such breach, which notice shall specify the nature of the breach and state the intention to terminate if the breach is not cured, and (ii) cured such breach within thirty (30) days of the date of such notice.
c. Unauthorized Use. GridRaster may, in its sole discretion, terminate this Agreement immediately upon written notice in the event of any unauthorized or unlawful usage by Customer or any third party gaining access to the Licensed Items, directly or indirectly, through or as a result of Customer’s use of the Licensed Items.
To the extent that the Licensed Items are provided to Customer as cloud based applications, GridRaster shall use commercially reasonable efforts to maintain the security and integrity of the Licensed Items, Customer Content and Customer Confidential Information. Customer agrees to administer and maintain user logins and passwords (collectively, “Code(s)”), if applicable. Customer is solely responsible for maintaining the confidentiality and security of its Codes. Customer is responsible for the use of the Licensed Items under any of its Codes, and for maintaining the confidentiality of such Codes. Customer agrees GridRaster will not be liable for any losses or damages that Customer may incur as a result of a third party accessing Customer’s account with Customer’s Code. Customers further agree that it could be held liable for losses incurred by GridRaster or another party due to a third party using Customer’s Codes. Customer agrees that it will be responsible for all activity in Customer’s account, whether such activity is initiated by Customer or any third party and GridRaster hereby specifically disclaims any and all liability for any activity in Customer’s account. Customer agrees to notify GridRaster immediately of any unauthorized use of any Codes or any other known or suspected breach of security and use Customer’s reasonable best efforts to eliminate and remedy any such breaches. GridRaster assumes no obligations to Customer with respect to the security of Customer’s information if Customer or any third party has given Customer Codes to unauthorized users or if Customer fails to keep its own systems secure and free of viruses.
a. Data Storage. GridRaster has no obligation to store or maintain any information Customer provides through our GridRaster Technology except to the extent that the applicable Ordering Document expressly includes extended storage.
Neither GridRaster nor its Affiliates or licensors shall be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by Customer arising out of this Agreement, even if the parties have been advised of the possibility of such damages. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GRIDRASTER EXCEED THE AMOUNTS PAID OR PAYABLE BY (A) CUSTOMER TO GRIDRASTER OR (B) BY A RESELLER TO GRIDRASTER ON BEHALF OF CUSTOMER, AS APPLICABLE, FOR THAT PORTION OF THE LICENSED ITEMS GIVING RISE TO SUCH LIABILITY DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
a. Customer’s Indemnity. GridRaster will defend, indemnify, and hold Customer harmless from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a third party and resulting from a claim alleging that the Licensed Items directly infringe any validly issued U.S. copyright, patent or trademark of a third party. GridRaster shall have no indemnity obligations to Customer hereunder to the extent of any infringement claims arising as a result of the combination of any of the Licensed Items, or any portion thereof, with any of Customer’s or any third-party’s products, services, hardware, business process(es) or otherwise or based upon specifications, other materials or information provided by Customer or its Affiliates or any third party.
b. GridRaster’s Indemnity. Customer will defend, indemnify, and hold harmless GridRaster and each of its Affiliates and officers, directors, managers, employees, attorneys and agents from Losses resulting from any Claims brought by a third party resulting from: (i) Customer’s alleged breach of its warranties or representations or its failure to fulfill any of its agreements under this Agreement or (ii) a claim that arises out of personal injury or property damage caused by Customer’s negligence or willful misconduct.
c. Mutual Obligations. The indemnified party(s) will promptly notify the indemnifying party in writing of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims.
The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
a. Confidential Information. “Confidential Information” will include: (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) all materials, information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary.
Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. The Licensed Items and the GridRaster Technology are the Confidential Information of GridRaster.
b. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Discloser’s Confidential Information, as evidenced by competent written records; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality.
Notwithstanding the foregoing, Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body; provided, however, that Recipient gives Discloser written notice of the order within ten (10) days after learning of any such requirement and provides Discloser with reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure.
GridRaster warrants that it will use its commercially reasonable efforts to make the Licensed Items available to Customer in accordance with the terms hereof under normal use and circumstances. Customer’s sole and exclusive remedy for breach of this warranty is for GridRaster to use its commercially reasonable efforts to repair or correct the defective Licensed Items.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, GRIDRASTER MAKES NO REPRESENTATIONS OR WARRANTIES, AND HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH REGARD TO THE LICENSED ITEMS AND ANY OTHER SERVICES FURNISHED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
(i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR ANY IMPLIED WARRANTIES PERTAINING TO TITLE; (iii) ANY REPRESENTATIONS OR WARRANTIES THAT THE USE OF THE LICENSED ITEMS WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; AND (iv) ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY DATA OR CONTENT INCLUDING, WITHOUT LIMITATION, THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS THEREOF.
a. Assignment. Customer shall not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without GridRaster’s prior written approval will be null and void. All terms and conditions in this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
b. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter thereof and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter herein. The Agreement may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. In the event of any inconsistency between the terms of an Ordering Document and this Agreement, the terms of this Agreement will prevail.
c. Governing Law; Attorney’s Fees. This Agreement will be governed by the laws of the State of California. GridRaster and Customer agree that any claims, legal proceedings, or litigation arising out of or in connection with this Agreement will be brought solely in the State of California, and the parties consent to the jurisdiction of such courts. In the event any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorney’s fees, expert witness and legal expenses as may be fixed by a court.
d. Injunctive Relief. Each party acknowledges that any breach of the provisions of this Agreement may cause irreparable harm and significant injury to the other party to an extent that may be extremely difficult to ascertain. Accordingly, each party agrees that each party will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief (without any requirement to post a bond or other security) to enjoin any breach or violation of this Agreement.
e. Modification; Severability. No modification of this Agreement will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
f. Notices. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to GridRaster and Customer will be sent to the contact as noted in the signature block below with a copy to the legal department.
g. Survival. Sections 1.b, 1.c, 3, 4(b), 5, 6, 7, 8, 9, and 10 will survive termination or expiration of this Agreement. In addition, each party will promptly return or destroy the other party’s Confidential Information upon termination of this Agreement.
h. Headings. Section or paragraph headings used in this Agreement are for reference purposes only, and should not be used in the interpretation hereof.
a. “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
b. “Authorized User(s)” means one or more of Customer’s employees, representatives, consultants, contractors, brokers and/or agents for whom Customer has purchased a license to use the Licensed Items and provided that such Authorized User is legally bound to comply with the terms and conditions of this Agreement. For any portions of the Licensed Items licensed on a named user basis, each Authorized User shall be assigned a single user key for use on one computer workstation or terminal at a time.
c. “Content” means the audio and visual information, documents, software, products, services, rates, forms, product information, logos, logic, order forms, wizards, data or other content provided by Customer, or made available to Customer and its Authorized Users to the extent authorized by a third-party content provider that is contained in the Licensed Items.
d. “GridRaster Technology” means, collectively, the Licensed Items and the underlying software code (including source code and object code), any content not provided by Customer, GridRaster’s Confidential Information and any and all other software, hardware, products, technical specifications, documentation, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available hereunder and all modifications, ideas, enhancements, or other improvements thereto.
e. “Licensed Items” means, collectively, the following items to the extent expressly licensed and/or subscribed to by Customer: (a) software, (b) software-based products and services, (c) documentation, (d) other services or materials; and/or (e) modifications to any of the foregoing.
f. “Ordering Document” means, a separate written agreement signed by GridRaster and Customer that sets forth Customer’s use of the Licensed Items.
