FLASHGRID END USER LICENSE AGREEMENT (EULA)

REV 14-AUG-2018

IMPORTANT - PLEASE READ CAREFULLY THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT"). BY DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY, OR IF YOU HAVE NAMED A COMPANY AS CUSTOMER, ON BEHALF OF THAT COMPANY (YOU OR ANY SUCH COMPANY, THE "CUSTOMER"), AND TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD DISCONTINUE DOWNLOADING, INSTALLING, AND USING THIS SOFTWARE.

1. AGREEMENT. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND FLASHGRID, INC. ("FLASHGRID") FOR THE ACCOMPANYING SOFTWARE PRODUCT, WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED, MEDIA, PRINTED MATERIALS AND "ONLINE" OR ELECTRONIC DOCUMENTATION (THE "LICENSED SOFTWARE"). BY DOWNLOADING, INSTALLING, OR USING THE LICENSED SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT OR DO NOT HAVE THE AUTHORITY WARRANTED ABOVE, DO NOT DOWNLOAD, INSTALL, OR USE THE LICENSED SOFTWARE.

2. LICENSE. Subject to the terms and conditions of this Agreement, FlashGrid grants to Customer a nontransferable, nonexclusive, revocable, worldwide license (without the right to sublicense) to permit the employees, third party consultants and contractors authorized by Customer ("Users") to install, use, execute, and display the Licensed Software, in executable object code format only, solely for Customer's own internal business operations and in accordance with the licenses, and only during the times Customer possesses a valid license key ("License Key") for the system(s) where the Licensed Software is installed. License Key generated for deployment via cloud marketplace shall be considered valid only for systems with active subscription to the Licensed Software via the cloud marketplace.

3. RESTRICTIONS. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) Customer shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose, or otherwise commercially exploit the Licensed Software or make the Licensed Software available to any third party other than an authorized User; (b) Customer shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Licensed Software; (c) Customer shall not access the Licensed Software in order to build a similar or competitive product or service; (d) except as expressly stated herein, no part of the Licensed Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and (e) any future release, update, or other addition to functionality of the Licensed Software shall be subject to the terms of this Agreement, unless FlashGrid expressly states otherwise. Customer shall preserve all copyright and other proprietary rights notices in the Licensed Software and all copies thereof.

4. MAINTENANCE AND SUPPORT SERVICES. FlashGrid or its authorized providers may provide standard maintenance and support services directly to Customer in accordance with support plan(s) purchased by Customer and the general service terms as updated from time to at the https://flashgrid.io/support web-page.

5. CLOUD MARKETPLACE SOFTWARE FEES. If Customer deploys Licensed Software on public cloud infrastructure via a paid cloud marketplace offering, Customer shall pay Cloud Marketplace Software Fees (“Software License Fees”, “User Fees”, "Software Cost", "Software" or similar as indicated in the marketplace offerings and agreements) to the cloud provider. FlashGrid, at its sole discretion, may suspend its maintenance and support services to Customer, revoke software licenses, or terminate the Agreement if Customer fails to meet payment terms of an invoice from the cloud provider that includes Cloud Marketplace Software Fees incurred for the use of Licensed Software.

6. OWNERSHIP. All right, title, and interest, including all intellectual property rights, in and to the Licensed Software (including any and all copies thereof) shall be owned and retained by FlashGrid or its suppliers. Any rights not expressly granted by FlashGrid in the Agreement are reserved. Customer acknowledges that it acquires no ownership interest in the Licensed Software.

7. OPEN SOURCE SOFTWARE. Certain items of independent third-party code may be included in the Licensed Software that are subject to open source licenses ("Open Source Software"). Such Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in this Agreement restricts Customer’s right to copy, modify, and distribute such Open Source Software that is subject to the terms of its licenses. The list of Open Source Software components is available and updated from time to time at the https://flashgrid.io/oss web-page.

8. DISCLAIMER OF WARRANTIES. THE LICENSED SOFTWARE IS PROVIDED TO CUSTOMER ON AN "AS-IS" BASIS. FLASHGRID AND ITS SUPPLIERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES RELATING TO THE LICENSED SOFTWARE, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. FLASHGRID DOES NOT WARRANT THAT USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE LICENSED SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FLASHGRID IS NOT REQUIRED TO PROVIDE ANY MAINTENANCE OR SUPPORT SERVICES WITH RESPECT TO THE LICENSED SOFTWARE UNDER THIS AGREEMENT.

9. LIMITATION OF REMEDIES AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER FLASHGRID NOR ITS SUPPLIERS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS OR CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLASHGRID'S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE LICENSED SOFTWARE THAT CAUSED SUCH DAMAGE. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER.

10. BASIS OF BARGAIN. The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between FlashGrid and Customer. FlashGrid would not be able to provide the Licensed Software on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of FlashGrid's suppliers.

11. TERM AND TERMINATION. This Agreement is effective on the earlier of the dates Customer downloads or installs the Licensed Software and shall continue unless and until this Agreement is terminated by either party pursuant to this section. FlashGrid may terminate this Agreement immediately upon notice to Customer in the event that Customer materially breaches any of the terms hereof. Customer may terminate this Agreement by destroying all copies of the Licensed Software. Upon termination, the license granted hereunder shall terminate and Customer shall immediately destroy any copies of the Licensed Software in its possession, but the terms of this Agreement which are intended to survive termination will remain in effect.

12. MODIFICATIONS. FLASHGRID RESERVES THE RIGHT TO CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ITS POLICIES RELATING TO THE LICENSED SOFTWARE AT ANY TIME. WE WILL NOTIFY YOU OF ANY MATERIAL CHANGES TO THIS AGREEMENT BY SENDING YOU AN E-MAIL TO THE LAST E-MAIL ADDRESS YOU PROVIDED TO US OR BY PROMINENTLY POSTING NOTICE OF THE CHANGES ON OUR WEBSITE. ANY MATERIAL CHANGES TO THIS AGREEMENT WILL BE EFFECTIVE UPON THE EARLIER OF THIRTY (30) CALENDAR DAYS FOLLOWING OUR DISPATCH OF AN E-MAIL NOTICE TO YOU OR THIRTY (30) CALENDAR DAYS FOLLOWING OUR POSTING OF NOTICE OF THE CHANGES ON OUR WEBSITE. THESE CHANGES WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF OUR LICENSED SOFTWARE. PLEASE NOTE THAT AT ALL TIMES YOU ARE RESPONSIBLE FOR PROVIDING US WITH YOUR MOST CURRENT E-MAIL ADDRESS. IN THE EVENT THAT THE LAST E-MAIL ADDRESS THAT YOU HAVE PROVIDED US IS NOT VALID, OR FOR ANY REASON IS NOT CAPABLE OF DELIVERING TO YOU THE NOTICE DESCRIBED ABOVE, OUR DISPATCH OF THE E-MAIL CONTAINING SUCH NOTICE WILL NONETHELESS CONSTITUTE EFFECTIVE NOTICE OF THE CHANGES DESCRIBED IN THE NOTICE. IF YOU DO NOT AGREE WITH THE CHANGES TO THIS AGREEMENT, YOU MUST NOTIFY US PRIOR TO THE EFFECTIVE DATE OF THE CHANGES THAT YOU WISH TO TERMINATE YOUR LICENSE TO THE LICENSED SOFTWARE. CONTINUED USE OF THE LICENSED SOFTWARE, FOLLOWING NOTICE OF SUCH CHANGES, SHALL INDICATE YOUR ACKNOWLEDGEMENT OF SUCH CHANGES AND AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF SUCH CHANGES.

13. EXPORT. The Licensed Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export or transfer, directly or indirectly, any U.S. technical data acquired from FlashGrid, or any products utilizing such data, in violation of the United States export laws or regulations. Customer will indemnify and hold FlashGrid harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs, and expenses (including attorney's fees) arising from or relating to any breach by Customer of its obligations under this section. Customer's obligations under this section shall survive the expiration or termination of this Agreement.

14. MISCELLANEOUS. Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States without regard to conflict of laws provisions. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in California with sole venue in the courts located in the county in which FlashGrid's principal place of business is located and each party hereby submits to the personal jurisdiction of such courts, except that FlashGrid may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect. Any notice to Customer may be provided by email. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled. Except as otherwise expressly provided in this Agreement, any modifications of this Agreement must be in writing and agreed to by both parties.

QUESTIONS OR ADDITIONAL INFORMATION. If you have questions regarding this Agreement, or wish to obtain additional information, please send an e-mail to [email protected] or write to us at the address below or any new address indicated on the FlashGrid's website at www.flashgrid.io

FlashGrid Inc
440 N Wolfe Rd
Sunnyvale CA 94085
United States

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