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Final EULA 4.8.22
<br />REV: 11-13-23 MI
<br />3 of 4
<br />the Receiving Party on a non-confidential basis by a third party
<br />not having a confidential relationship with Grayshift that
<br />rightfully acquired such information; or (iv) communicated to a
<br />third party by the Receiving Party with Grayshift’s express
<br />written consent.
<br />11.3.A disclosure of Confidential Information that is legally
<br />compelled to be disclosed pursuant to a subpoena, summons,
<br />order or other judicial or governmental process shall not be
<br />considered a breach of this Agreement; provided the Receiving
<br />Party promptly notifies Grayshift in writing, if notification is
<br />permitted by law, and uses commercially reasonable efforts to
<br />assist Grayshift, at Grayshift’s expense, in opposing such
<br />disclosure or obtaining a protective order or other reliable
<br />assurance preventing or limiting such disclosure and/or ensuring
<br />that confidential treatment will be accorded to any Confidential
<br />Information that is disclosed. Such disclosure does not remove
<br />the Confidential Information so disclosed from the protection of
<br />this Agreement. No further disclosure beyond the scope of such
<br />order is allowed.
<br />11.4.The Receiving Party acknowledges and agrees that due
<br />to the unique nature of Grayshift’s Confidential Information,
<br />there can be no adequate remedy at law for any breach of its
<br />obligations under this Section 11, that any such breach will cause
<br />irreparable and continuing damage to Grayshift and, therefore,
<br />that upon any such breach or any threat thereof, Grayshift shall
<br />be entitled to whatever remedies it might have by law and equity,
<br />including injunctive relief, a decree for specific performance, and
<br />all other relief as may be proper (including money damages, if
<br />appropriate). The Receiving Party further acknowledges and
<br />agrees that the covenants contained herein are necessary for the
<br />protection of legitimate business interests and are reasonable in
<br />scope.
<br />12. TERM AND TERMINATION. This Agreement shall
<br />continue until terminated as set forth herein. Notwithstanding the
<br />foregoing, the license to any Product or Software is only during
<br />the license term applicable to such Product or Software. The
<br />license term shall be determined in the Quote. At Grayshift’s sole
<br />discretion, Grayshift may also revoke such license and/or
<br />terminate this Agreement immediately without refund or
<br />reimbursement if Licensee violates any Material Provision of this
<br />Agreement. For the purposes of this Section 12, “Material
<br />Provision” means each of Sections 3 (License Grant), 5 (License
<br />Restrictions), 9 (Licensee Warranties), and 11 (Confidentiality
<br />and Non-Disclosure Obligations). Any termination of this
<br />Agreement shall terminate the licenses granted hereunder. All
<br />Confidential Information, Software and/or derivatives therefrom
<br />delivered pursuant to this Agreement shall be and remain the
<br />property of Grayshift, and upon expiration or termination of this
<br />Agreement for any reason, Licensee shall destroy (or return, at
<br />Grayshift’s election) (i) all materials in the possession of
<br />Licensee in any medium that contain, refer to, or relate to all other
<br />written, printed, or tangible materials containing Confidential
<br />Information; and (ii) any derivatives therefrom, and shall so
<br />certify to Grayshift that such actions have occurred. No such
<br />material shall be retained or used by the Receiving Party in any
<br />form or for any reason. Except for the license and except as
<br />otherwise expressly provided herein, the terms of this Agreement,
<br />including the Confidentiality and Non-Disclosure obligations in
<br />Section 11 hereto and any additional terms agreed-to in writing
<br />by both parties pursuant to Section 1 hereto, shall survive
<br />expiration and termination. Notwithstanding any other provision
<br />of this Agreement, the obligations of the parties as to Confidential
<br />Information shall remain binding in perpetuity until such
<br />information no longer qualifies as Confidential Information or
<br />until Grayshift sends the Receiving Party written notice releasing
<br />the Receiving Party from its obligations under Section 11 hereto,
<br />whichever occurs first.
<br />13. INDEMNITY. Grayshift will defend You from and
<br />against any suit brought against you by a third party to the extent
<br />the suit alleges that your use of a Product infringes a patent in
<br />Canada or the United States (an “IP Claim”). Grayshift will also
<br />pay the damages, costs, and attorneys’ fees that are awarded
<br />against you in a final, non-appealable court judgment for the IP
<br />Claim, or required to be paid by you in a settlement of an IP Claim
<br />that Grayshift has agreed to in writing. You agree to (i) give
<br />prompt notice of the IP Claim to Grayshift; (ii) grant sole control
<br />of the defense and settlement of the IP Claim to Grayshift; and
<br />(iii) provide reasonable cooperation to Grayshift and, at
<br />Grayshift’ request and expense, assistance in the defense or
<br />settlement of the IP Claim ("Your Indemnification Obligations”)
<br />and Grayshift shall not be liable to the extent an IP Claim, or
<br />portion thereof, is attributable to Your breach of Your
<br />Indemnification Obligations. In the event of an IP Claim,
<br />Grayshift may, at its option and expense: (a) obtain for You the
<br />right to continue to use the Product; (b) substitute a substantially
<br />equivalent non-infringing product; (c) modify the Product to
<br />make it non-infringing; or if (a), (b), and (c) are not commercially
<br />feasible, then (d) terminate Your license and require that You no
<br />longer access and use the Product. If Your license is terminated,
<br />You must return or destroy the Product and within 30 days of
<br />receipt of all of the Product or certification of destruction thereof,
<br />Grayshift shall refund You x) a prorated amount of any unused
<br />prepaid license fees if You purchased a Term License; or y) a
<br />prorated amount of any unused prepaid Support Services fees if
<br />You purchased a Perpetual License. The indemnity obligations
<br />under this clause do not extend to Claims arising from or relating
<br />to: (aa) any modification to the Product or use in combination
<br />with any equipment, software, data or any other materials not
<br />authorized by Grayshift where the infringement would not have
<br />occurred but for such activity; (bb) use of the Product by You in
<br />a manner contrary to the terms of this Agreement where the
<br />infringement would not have occurred but for such use; (cc) the
<br />continued use of the infringing Product after Grayshift has
<br />provided substantially equivalent non-infringing software, a non-
<br />infringing modification of the Product, or terminated Your
<br />license in accordance with this Agreement; or (dd) custom
<br />Product developed at Your request while utilizing Your
<br />specifications. NOTWITHSTANDING ANY TERMS TO THE
<br />CONTRARY IN THIS AGREEMENT, THE PROVISIONS OF
<br />THIS CLAUSE STATE THE ENTIRE LIABILITY AND
<br />OBLIGATIONS OF GRAYSHIFT AND YOUR EXCLUSIVE
<br />REMEDY WITH RESPECT TO ANY ACTUAL OR
<br />ATTY/AGR.2023.261/Grayshift's GrayKey (Forensic Extraction Toolkit) (Page 5 of 6)
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