End User License Agreement

GRAYLE TERMS OF SERVICE

These Terms of Service (the “Agreement”) are a legal agreement between Grayle Technologies, Inc. (“Grayle”) and you (“you” or “your”), and govern your access to and use of: (i) Grayle’s footwear software as a service (the “Service”); and (ii) your Grayle shoe size generated through the use of the Service (the “Grayle Sizing”).

This is a legal document between you and GRAYLE. PLEASE READ IT. By accessing or using the SERVICE, you: (i) ACKNOWLEDGE that you have read and understand all of the terms in this Agreement; and (ii) expressly agree to the terms set forth HEREIN. If you do not agree to the terms and conditions of this Agreement, do not access or use the SERVICE.

If you agree to the terms of this Agreement, you have the following rights, obligations and responsibilities:

1. Definitions.

“Usage Rights” means the usage rights purchased by you with respect to the access to and/or use of the Service.

“Systems Data” means all data, content and information regarding your use of the Service, the Materials, and/or the Grayle Sizing in the nature of de-identified or aggregate systems administrative data, statistical, demographical data, operational information, and data generated by or characterizing the use of the Service, the Materials, and/or the Grayle Sizing.

Other capitalized terms used in this Agreement shall have the definitions given to those terms herein.

2. Grant of License.

2.1 During the Term and subject to the terms and conditions of this Agreement, including without limitation, your Usage Rights, Grayle hereby grants to you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable right and license to: (i) access and use the Service solely for your internal, non-commercial use only; and (iii) use the Grayle Sizing generated by the Service solely for your internal, non-commercial use only, in each case, subject to the following terms, conditions and restrictions:

2.1.1 The Service may permit users to download and/or print certain content, materials or information (“Materials”). To the extent the Service permits the downloading and/or printing of Materials, you have the following rights:

(a) The license rights granted in this Section do not include the right to copy, print or download the Materials apart from the Service, and you agree not to copy, print and/or download such Materials apart from the Service except as otherwise expressly permitted herein.

(b) To the extent the Service permits you to download and/or print Materials, then the license rights granted in this Section include the right to make printouts and/or copies of the Materials, provided that, you may make a reasonable number of printouts and/or copies of the Materials, without modification, solely for your internal, non-commercial use only. Any printouts or copies of the Materials shall retain Grayle’s copyright and/or other proprietary rights notices, in addition to any and all disclaimers and/or limitations included in the Materials.

(c) Except as otherwise expressly set forth in this Section, downloading, printing, copying, modifying, distributing or otherwise using the Service and/or Materials for external commercial purposes, including commercial publication, sale or personal gain, is expressly prohibited.

2.1.2 You may only access and/or use the Service and the Materials within the scope of your Usage Rights. It is your obligation to know and understand the scope and extent of your Usage Rights.

2.2 You may use the Service, the Materials, and/or the Grayle Sizing only for lawful purposes in accordance with the terms and conditions of this Agreement. Except as expressly permitted in this Agreement, you agree not to:

2.2.1 License, sublicense (except as expressly permitted by this Agreement), lease, rent, timeshare, distribute, disclose, permit access to, or transfer to any third party, any portion of the Service, the Materials, and/or the Grayle Sizing, whether for profit or without charge;

2.2.2 Store, reproduce, distribute, transmit, modify, adapt, perform, display (including by "framing"), publish or sell the Service, the Materials, and/or the Grayle Sizing;

2.2.3 Translate, reverse engineer, disassemble, decompile, discover, or modify the Service (including any of Grayle’s software associated therewith), the Materials, and/or the Grayle Sizing;

2.2.4 Remove any copyright and other proprietary notices placed upon the Service or any Materials retrieved from the Service;

2.2.5 Circumvent any use-limitation or protection device contained in or placed upon the Service or any Materials retrieved from the Service or access or attempt to access any portion of the Service or Materials that you are not authorized to access;

2.2.6 Use the Service to execute denial of service attacks;

2.2.7 Perform automated searches against Grayle’s systems (except for non-burdensome federated search services), including automated "bots", link checkers or other scripts, without prior written permission from Grayle;

2.2.8 Use the Service, the Materials, and/or the Grayle Sizing to create products or perform services which compete or interfere with those of Grayle or its licensors, or authorize or assist any third party to do so;

2.2.9 Text mine, data mine or harvest metadata from the Service;

2.2.10 Impair or overburden the Service or any servers or systems associated with the Service;

2.2.11 Impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity;

2.2.12 Violate any applicable local, state, national or international law;

2.2.13 Use the Service, the Materials, and/or the Grayle Sizing in any manner that violates, infringes, or misappropriates the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party;

2.2.14 Introduce to the Service or any associated IT systems or networks any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.

2.2.15 Download all or parts of the Service and/or the Materials in a systematic or regular manner or so as to create a collection of materials comprising all or a material subset of the Service and/or the Materials, in any form; or

2.2.16 Use the Service and/or the Materials in connection with life support systems, medical devices, or any application or other high risk activities where failure or malfunction could lead to possible loss of life.

2.3 You acknowledge and agree that you may only use your Grayle Sizing to purchase products or services through third party ecommerce websites making use of the Grayle Functionality. Any use of the Grayle Sizing other than as expressly authorized in this Agreement shall be deemed a material breach by you of this Agreement.

2.4 The Service, the Materials, and the Grayle Sizing are owned by Grayle and/or its licensors, and are protected by United States trademark and copyright laws and international treaty provisions. Grayle and/or its licensors own and retain all right, title and interest in and to the Service, the Materials, and the Grayle Sizing, including any and all patents, trademarks, copyrights, trade secrets and other intellectual property rights embodied or contained therein. Your possession or use of the Service, the Materials, and/or the Grayle Sizing does not transfer to you any right, title or interest in any of the foregoing and you will not acquire any such right, title or interest, except as expressly set forth in this Agreement.

2.5 You acknowledge and agree that all Systems Data is and shall remain the sole and exclusive property of Grayle. For purposes of clarity, Grayle may make any legal use of the Systems Data without notifying you or sharing such Systems Data with you. Specifically, by way of illustration and not by way of limitation, Grayle may publish and share Systems Data with others in aggregate or statistical form to promote the Service and/or the Grayle Functionality, for evaluating the efficiency, utility and functionality of the Service and/or the Grayle Functionality, and for enhancing and improving the Service and Grayle’s other products or services.

3. Availability. To the extent the Service, the Materials, and/or the Grayle Sizing is hosted by Grayle, Grayle shall use commercially reasonable efforts to ensure that the Service, the Materials, and/or the Grayle Sizing are available for use and/or access by end users on an uninterrupted basis. However, you acknowledge and agree that the Service, the Materials, and/or the Grayle Sizing will not always be available, as a result of, among other things, scheduled maintenance, system downtime, failures of the Internet generality, and other causes. In the event of any such unavailability, your sole and exclusive remedy, and Grayle’s sole and exclusive liability, shall be for Grayle to use commercially reasonable efforts to restore the availability of the Service, the Materials, and/or the Grayle Sizing as soon as reasonably practicable under the circumstances. Grayle shall not be liable for any failure, delay or interruption in the Service, the Materials, and/or the Grayle Sizing due to failure of any equipment or telecommunications, or for failures resulting from any cause beyond Grayle’s reasonable control.

4. Modifications or Changes. Grayle further reserves the right to modify, alter and/or change the Service and/or the Materials at any time, including without limitation, by modifying, altering and/or changing the Materials or any Service features or functions, or by removing or disabling certain Materials or Service features or functions altogether. You acknowledge and agree that Grayle shall have no liability to you with respect to any such modifications, alterations or changes, or with respect to any Materials or Service features or functions that have been disabled or removed from the Service.

5. Your Account.

5.1 In order to access and use the Service, you may be required to register for a user account (“Your Account”). In registering for Your Account, you must provide accurate, current and complete information as may be prompted by any registration forms or as otherwise requested by Grayle (collectively, “Registration Data”). By submitting the Registration Data, you represent and warrant that the Registration Data is accurate, current and complete.

5.2 You are fully responsible for all usage and activity on the Service under Your Account and shall be liable for all such use and activity. You are solely responsible for maintaining the confidentiality and security of your login and password(s) (whether or not provided by Grayle or chosen by you), and you agree to immediately notify Grayle of any known or suspected unauthorized use(s) of Your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your login and password. You further agree to: (i) take reasonable efforts to resolve any unauthorized access to the Service; and (ii) reasonably cooperate with Grayle in mitigating and/or resolving the unauthorized access. Notwithstanding anything else herein, Grayle reserves the right to pursue any and all claims against you for acts and/or omissions under Your Account.

5.3 Except as otherwise authorized in writing by Grayle and/or as permitted by your Usage Rights, the license rights granted in this Agreement are limited solely for your individual use in accessing and/or using the Service, the Materials, and/or the Grayle Sizing, as applicable. Except as otherwise authorized in writing by Grayle and/or as permitted by your Usage Rights, you agree that under no circumstances will you permit any other person or entity, to use Your Account for the purpose of accessing the Service, the Materials, and/or the Grayle Sizing, as applicable, nor may you access and/or use the Service using the account information of any other person, entity or organization.

6. Content and Information.

6.1 Materials. You acknowledge and agree that the Materials are provided for informational purposes only. While commercially reasonable care has been taken in compiling, organizing, maintaining and presenting the Materials, Grayle does not warrant or guarantee their completeness, legality, correctness, accuracy, or timeliness.

6.2 Third Party Content. The Service may display or make available, and the Materials may include, third party content (including data, information, applications and other products services and/or materials) (collectively, "Third Party Materials"). You acknowledge and agree that Grayle is not responsible for the Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Grayle does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials.

6.3 Sizing Information.

6.3.1 The Service relies on information, images and other information submitted by you in order to create your Grayle Sizing (collectively, “Sizing Information”). The Sizing Information is and shall at all times remain your sole and exclusive property, provided that, you hereby grant to Grayle a non-exclusive, non-transferrable, non-sublicensable license to load, transmit, distribute and/or make available your Sizing Information in and through the Service. You are solely responsible for any and all of Sizing Information uploaded and/or transmitted by you in and/or through the Service. You represent and warrant to Grayle: (i) that you own your Sizing Information or otherwise have sufficient rights in your Sizing Information to grant the license rights granted to Grayle in this Section; (ii) that your Sizing Information does not, and its use by Grayle as contemplated in this Section will not, violate, infringe, or misappropriate the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party; and (iii) that there are no claims currently pending or threatened as to your ownership of or rights in your Sizing Information, or as to your violation, infringement or misappropriation of any third party intellectual property rights, publicity or privacy rights, or other proprietary rights with respect to your Sizing Information, and to your knowledge, you have not engaged in any acts or omissions likely to result in any such claims.

6.3.2 In the event that Grayle discovers that your Sizing Information is in violation of this Section 6 or Section 2.2.13 above, Grayle may, without limiting its rights or creating any liability therefor, immediately remove your Sizing Information from the Service, and may further block and/or restrict your access thereto pending resolution of any such violation.

6.3.3 You are responsible for keeping appropriate copies and records of your Sizing Information. Grayle has no obligation to back up or maintain your Sizing Information, and Grayle takes no responsibility and assumes no liability for your Sizing Information, including without limitation any loss or damage thereto.

6.3.4 You agree that Grayle may use your Sizing Information in any manner that does not identify you as the source of or subject matter of the Sizing Information, including without limitation, by de-identifying your Sizing Information and/or aggregating your Sizing Information with third party data or information.

6.4 Grayle Sizing.

6.4.1 The Grayle Sizing is generated by the Service specifically for you using your Sizing Information. However, the Grayle Sizing remains owned by Grayle and can only be used by you: (i) during the term of this Agreement; and (ii) in order to purchase products or services through third party ecommerce websites making use of the Grayle Functionality. However, while the Grayle Sizing remains owned by Grayle, Grayle will not, both during and following the termination of this Agreement: (a) use the Grayle Sizing other than to provide (or authorize third parties to provide) the Service and/or the Grayle Functionality to you; or (b) disclose your Grayle Sizing to any third party. However, Grayle shall not be restricted in its use of the Grayle Sizing in any manner that does not identify you as the source of or subject matter of the Grayle Sizing, including without limitation, by de-identifying the Grayle Sizing and/or aggregating the Grayle Sizing with third party data or information. Grayle will have no obligation to disclose the Grayle Sizing to you, either during or following the termination of this Agreement.

6.4.2 You acknowledge and agree that the Grayle Sizing is provided for informational purposes only. While commercially reasonable care has been taken in compiling, organizing, maintaining and presenting the Grayle Sizing, Grayle does not warrant or guarantee its completeness, legality, correctness, accuracy, or timeliness. Grayle does not warrant or guarantee that the Service will accurately measure your feet or that any footwear you purchase using the Grayle Sizing will be the correct size or fit.

7. Third Party Services and Websites.

7.1 Grayle may use third party services, software or applications in making available the Service to you. You agree to comply with any and all third party license terms, terms of use, or terms of service applicable to any such third party service, software or applications, and shall not take or fail to take any act that would cause Grayle to be in breach or violation of any such third party license terms, terms of use, or terms of service. You further acknowledge and agree that Grayle shall not be responsible for, and shall have no liability to you in connection with, the unavailability, failure of, or your inability to use, any such third party service, software or applications.

7.2 The Grayle Sizing may only be used to purchase goods or services from an ecommerce website owned or controlled by a third party who has entered into an agreement with Grayle that allows end users to use Grayle’s sizing services in order to purchase footwear by and through the ecommerce website (the “Grayle Functionality”). Any purchase you make from a third party website making use of the Grayle Functionality is not with Grayle, so you should review the third party website’s “terms of use,” other contract(s) and/or privacy notice before completing your transaction. You further acknowledge and agree that Grayle’s providing a third party the right to make available the Grayle Functionality through such third party’s website does not constitute or imply an endorsement of such third party or its website, and that Grayle shall not be responsible for, and shall have no liability to you in connection with, your use of any such third party website, including without limitation, the unavailability, failure of, or your inability to use any such third party website, or your purchase of goods or services from such third party website.

8. Payments.

8.1 You will pay all fees (“Fees”) specified in any order forms or similar documentation under which you acquired your rights in the Service (an “Order Form”), if any, or which you otherwise have been provided the opportunity to review and accept as part of purchasing any Usage Rights from Grayle, if any, in each case, pursuant to the terms of the applicable Order Form or such other terms and conditions made available to you prior to making such payment.

8.2 Except as otherwise specified by Grayle or in an Order Form: (i) Fees are based on the rights purchased and not actual usage; and (ii) except as otherwise set forth herein, payment obligations are non-cancelable and Fees paid are non-refundable.

9. Term and Termination.

9.1 Term. This Agreement will commence as of the date you first click “I ACCEPT THE TERMS OF SERVICE” on the Order Form or registration page (the “Effective Date”) and will continue until terminated as set forth in this Agreement.

9.2 Termination.

9.2.1 This Agreement will terminate as follows:

(a) In the event you are no longer authorized to access and/or use the Service as a result of the expiration or termination of your Usage Rights;

(b) Grayle may terminate this Agreement upon written notice to you effective immediately, if you commit a material breach of this Agreement; and

(c) Either party may terminate this Agreement, at any time, for any reason or no reason, by providing thirty (30) days’ prior written notice to the other party.

(d) Grayle may terminate this Agreement upon written notice to you effective immediately, in the event that, due to a change in applicable law, Grayle is no longer able to provide the Service and/or the Materials for its end users generally, or providing the Service and/or the Materials is no longer commercially feasible. Upon any termination in accordance with this Section, you will receive a pro-rated refund of any fees paid by you pursuant to Section 8 that are unearned as of the effective date of termination.

9.2.2 If this Agreement is terminated in whole or in part due to your breach: (i) Grayle will disable access to the Service, the Materials, and the Grayle Sizing; (ii) you agree to destroy any and all Materials in your possession or control, and certify destruction upon request; (iii) you forfeit all prepaid fees (except as set forth in Section 9.2.1(d) above); and (iv) Grayle reserves the right to pursue all available legal remedies. The parties intend that the parties’ rights, obligations and responsibilities set forth in Sections 1, 2.4, 2.5, 6, 7, 9.2.2, 10, 11, 12, 13, 14, 15.2, 18, and 20 through 23 shall survive the termination of this Agreement.

10. Indemnity. You agree to defend, indemnify and hold harmless Grayle, its licensors, affiliates, successors and assigns, and each of their respective officers, directors, agents, and employees (the “Grayle Indemnitees”), for, from and against any and all claims, demands, loss, damage, liability, or expense (including, but not limited to, attorneys’ fees at trial, on appeal, and on any petition for review), arising out of or related to the breach of this Agreement by you, or otherwise arising from your unauthorized use of the Service, the Materials, or the Grayle Sizing by you, including without limitation, any actual or threatened suit, demand or claim made against the Grayle Indemnitees arising out of or relating to your conduct, or your violation of this Agreement, or your violation of the rights of any third party.

11. Audits. Grayle may retain administrative access to Your Account through the Service for purposes of auditing your compliance with the terms of this Agreement, including without limitation, your usage of the Service, the Materials, and/or the Grayle Sizing. Grayle and/or its designees shall further have the right, upon reasonable prior notice to you, to audit and inspect your systems, devices, and/or records for purposes of determining your compliance with this Agreement, which audit right may include the right to access and inspect your facilities and copy any documents or records in connection with such audit. You agree to cooperate with Grayle in connection with any such audit.

12. Disclaimer. THE SERVICE, THE MATERIALS, AND THE GRAYLE SIZING ARE PROVIDED “AS IS” AND “AS AVAILABLE.” GRAYLE AND ITS LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND RELATING TO THE SERVICE, THE MATERIALS, OR THE GRAYLE SIZING, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AVAILABILITY, ACCURACY, TIMELINESS, CORRECTNESS, RELIABILITY, CURRENCY, OR COMPLETENESS OF THE SERVICE, THE MATERIALS, THE GRAYLE SIZING, OR ANY INFORMATION OR RESULTS OBTAINED THROUGH THE SERVICE, EVEN IF ASSISTED BY GRAYLE. GRAYLE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GRAYLE SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR DETERMINING THE COMPATIBILITY OF ANY HARDWARE OR SOFTWARE NOT SUPPLIED BY GRAYLE WITH THE SERVICE AND PROVIDES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE OPERATION OF SUCH HARDWARE OR SOFTWARE WITH THE SERVICE. THE SOLE RISK OF USING THE SERVICE AND/OR THE MATERIALS IS WITH YOU.

YOU ACKNOWLEDGE AND AGREE THAT THE GRAYLE SIZING IS INFORMATIONAL ONLY. ALTHOUGH GRAYLE USES COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE GRAYLE SIZING IS ACCURATE, RELIABLE AND COMPLETE, YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE GRAYLE SIZING IS AT YOUR OWN RISK.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW AND ONLY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY LAW.

13. Limitation of Liability. THE MAXIMUM LIABILITY OF GRAYLE AND/OR ITS LICENSORS ARISING OUT OF OR RELATING TO THE SERVICE, THE MATERIALS, THE GRAYLE SIZING, AND/OR THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF: (i) THE TOTAL AMOUNT OF FEES RECEIVED BY GRAYLE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH SUCH DAMAGES ARE ALLEGED TO BE OWED; OR (ii) $500. IN NO EVENT SHALL GRAYLE AND/OR ITS LICENSORS BE LIABLE TO YOU FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES; (b) ANY CLAIM RELATED TO YOUR SIZING INFORMATION OR ANY OTHER USER GENERATED CONTENT OR MATERIALS, OR ANY THIRD PARTY MATERIALS; OR (c) ANY CLAIM RELATED TO THE UNAUTHORIZED ACCESS TO AND/OR USE OF THE SERVICE, THE MATERIALS, AND/OR THE GRAYLE SIZING.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

14. Communications; Privacy. By accessing and/or using the Service, you agree to receive certain electronic communications from Grayle. Any personal information supplied by you (including Registration Data) or automatically collected through your use of the Service will be collected, used and disclosed in accordance with Grayle’s Privacy Notice for the Service. Please refer to the Privacy Notice for information on how Grayle collects, uses, and discloses personal information from its users, including the use of cookies. You further acknowledge and agree that personal information supplied by you (including Registration Data) or automatically collected through your use of the Service may be transferred to other countries or jurisdictions outside of your country or jurisdiction of residence, and that the protections afforded such information under the laws and regulations of the country or jurisdiction to which the information is transferred may not be comparable to or as protective as the protections afforded such information in your country or jurisdiction of residence.

15. Suspension; Equitable Relief.

15.1 Without limiting the above, Grayle may suspend delivery of the Service if it reasonably determines that you are not in compliance with this Agreement, including without limitation, by not making full and timely payment to Grayle and/or exceeding your Usage Rights, or as necessary to prevent injury or damage to Grayle and/or its end users. If delivery is suspended, Grayle will restore your access as soon as you come back into compliance with the terms of this Agreement and/or the cause of the suspension has been remediated, in each case, as determined in Grayle’s sole and absolute discretion. Grayle’s suspension of the Service is without prejudice to any right, claim or remedy of Grayle under this Agreement, including without limitation, Grayle’s rights under Section 9 above.

15.2 You hereby acknowledge and agree that, in the event of any breach or threatened breach of your obligations or responsibilities under Section 2 above or any other provision affecting Grayle’s and/or its licensors’ intellectual property rights in the Service, the Materials, or the Grayle Sizing, Grayle may suffer irreparable injury for which damages at law may not be an adequate remedy. Accordingly, without prejudice to any other rights and remedies otherwise available to Grayle at law or equity, Grayle shall be entitled to seek equitable relief, including injunctive relief and specific performance, for any such breach or threatened breach of this Agreement by you.

16. Export. The Service, the Materials, and/or the Grayle Sizing may be subject to United States’ export control laws, including the U.S. Export Administration Act and its associated regulations. You agree as follows:

16.1 You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

16.2 You shall not, directly or indirectly, export, re-export or release the Service, the Materials, and/or the Grayle Sizing to, or make the Service, the Materials, and/or the Grayle Sizing accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You agree to comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Service, the Materials, and/or the Grayle Sizing available outside the United States.

17. Government Rights. The Service may constitute commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the United States Government or any contractor therefor, you receive only those rights with respect to the Service as are granted to all other end users under license, in accordance with: (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors; or (ii) 48 C.F.R. §12.212, with respect to all other United States Government licensees and their contractors.

18. Confidentiality. The Materials and Grayle’s methods and technology associated with the compiling and generating the Grayle Sizing are confidential and proprietary to Grayle (“Confidential Information”). You agree to: (i) not use the Confidential Information other than to exercise your rights or perform your obligations hereunder; and (ii) use at least the same degree of care, but not less than reasonable care, to prevent disclosing the Confidential Information. You further agree not to disclose or permit any other person or entity access to the Confidential Information, except such disclosure or access shall be permitted to any of your employees, agents, representatives or independent contractors requiring access in order to exercise your rights or perform your obligations hereunder, provided the foregoing are subject to confidentiality obligations at least as restrictive as those set forth in this Agreement. Upon expiration or earlier termination of this Agreement for any reason or at any time at the request of Grayle, you agree to return or destroy, at Grayle’s option, all Confidential Information (including all copies or parts thereof) in your possession, custody or control.

19. Amendments. Grayle may update or modify this Agreement and any policies affecting the Service immediately upon notice to you posted to the Service or distributed via electronic mail. You will be required to click “I ACCEPT THE TERMS OF SERVICE” upon any subsequent use of the Service following such an update or modification. Your clicking “I ACCEPT THE TERMS OF SERVICE” and your subsequent use of the Service shall be conclusively deemed an acceptance of all such updates or modifications. If you do not wish to be bound by such update or modification and so notify Grayle in writing prior to your clicking “I ACCEPT THE TERMS OF SERVICE,” Grayle will refund you any unearned fees that you have paid. Any updates or modifications to this Agreement shall be deemed to supersede and/or replace the Agreement in its prior form, to the extent set forth in such updates or modifications.

20. Governing Law; Disputes. This Agreement is governed by the laws of the United States and the State of Oregon, USA, without reference to conflict of laws principles. Except where prohibited, you agree that all disputes, claims and legal proceedings in any way arising out of or relating to the Service, the Materials, the Grayle Sizing, or this Agreement shall be resolved individually, without resort to any form of class action, and exclusively in the state or federal courts located in Multnomah County, Oregon. You waive all defenses of lack of personal jurisdiction, improper venue, “forum non conveniens” and the like with respect to such courts. TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.

21. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to its subject matter and supersedes all previous and contemporaneous agreements between the parties with respect to the same subject matter hereof and may not, except as otherwise set forth in this Agreement, be amended or modified except in a writing signed by the parties. The terms of your purchase orders, if any, are for your convenience and do not supersede any term or condition of this Agreement.

22. Notice. Any notice, communication, or complaint by you to Grayle with respect to the Service may be sent to:

Grayle Technologies, Inc.

____________________

Attn: Legal Department

Email:

Telephone:

23. General. The parties agree as follows: (i) no waiver will be binding on a party unless it is in writing and signed by the party making the waiver and a party’s waiver of a breach of a provision of this Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision; (ii) the parties will have all remedies available to them at law or in equity; (iii) if any term or provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the term or provision in any other respect and of the remaining provisions of this Agreement will not be impaired; and (iv) both parties have full power and authority to enter into and perform this Agreement.