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Yottabyte End User License Agreement

(Community Beta Edition Download)

IMPORTANT NOTICE: BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE AND ASSOCIATED DOCUMENTATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE OF ASSOCIATED DOCUMENTATION.

This EULA is a legal agreement between you and Yottabyte, LLC (“Yottabyte”, “Us”, “We”, or “Our”) regarding use of the Software and associated documentation (as defined below). Unless You have another written agreement with Yottabyte regarding this Software and Documentation, Your use of the Software and Documentation is governed by this EULA.

YOTTABYTE PROVIDES THE SOFTWARE AND DOCUMENTATION TO YOU SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM.

BY CLICKING THE “ACCEPT” BUTTON YOU (A) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE A CORPORATION, LIMITED LIABILITY COMPANY, GOVERNMENTAL ORGANIZATION, EDUCATIONAL INSTITUTION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO ITS TERMS.

IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOTTABYTE WILL NOT AND DOES NOT LICENSE THE SOFTWARE OR DOCUMENTATION TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS EULA, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE OR DOCUMENTATION THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF YOTTABYTE’S SOFTWARE OR DOCUMENTATION.

1. Definitions

For purposes of this EULA, the following terms have the following meanings:

1.1 “Documentation” means user manuals, technical manuals and any other materials provided by Yottabyte, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software. The Documentation is available at www.yottabyte.com or any successor website designated by Yottabyte.

1.2 “Licensed Appliance” means the physical server which enables the Software to operate on a single hardware device.

1.3 “Open Source Software” means various open source software components licensed under the terms of applicable open source license agreements included in the materials relating to such software. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions.

1.4 “Operating System” means an instance of third-party operating systems licensed by you and installed and running on a Licensed Appliance on which the Software is installed.

1.5 “Software” means the unsupported beta version of the software products that are licensed to you under this EULA, including, but not limited to, any related components purchased or provided with the Software, application programming interfaces, associated media, Documentation or other printed materials, online or electronic Documentation, scripts and any updates and maintenance releases thereto.

1.6 “Yottabyte Tools” means a suite of utilities and drivers that may enhance the performance and functionality of your Operating System. Yottabyte Tools may include some or all of the following, depending on your Operating System: the Yottabyte Tools control panel and support for features such as shared folders, drag and drop in Windows guests, backup agents, shrinking virtual disks, time synchronization with the host, Yottabyte Tools scripts, and connection and disconnection of devices while the Licensed Appliance is running.

2. Community Beta Edition License.

2.1 License Grant. The Software is licensed, not sold. Subject to and conditioned upon your compliance with all terms and conditions set forth in this EULA (including without limitation Section 2.4 below and all other agreements between You and Yottabyte), Yottabyte grants only to you a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, by and through your employees, a single copy of the Software and associated Documentation only on one (1) Licensed Appliance for the sole purpose of testing and evaluation of an unsupported beta version of the Software and Documentation in a non-production environment.

2.2 Back-Up Copies. In addition to the foregoing, You have the right to make one (1) copy of the Software and Documentation solely for archival purposes and one (1) copy of the Software and Documentation solely for backup purposes, provided that You shall not, and shall not allow any third party or entity to, install or use any such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that you uninstall and otherwise delete such inoperable copy(ies). All copies of the Software or Documentation made by You: (i) will be the exclusive property of Yottabyte; (ii) will be subject to the terms and conditions of this EULA; and (iii) must include all trademark, copyright, patent and other intellectual property rights notices contained in the original.

2.3 Evaluation Feedback. The purpose of this limited license is the testing and evaluation of an unsupported beta version the Software and Documentation in a non-production environment. In furtherance of this purpose, You may provide feedback to Yottabyte concerning the functionality and performance of the Software from time to time as reasonably requested by Yottabyte, including, without limitation, identifying potential errors and improvements. You will not provide any feedback or other information which You consider to be proprietary or confidential. Feedback and other information which is provided by You to Yottabyte in connection with the Software or this Agreement may be used by Yottabyte to improve or enhance its products and, accordingly, Yottabyte shall have a non-exclusive, perpetual (but not exceeding the duration of any applicable intellectual property rights and if perpetuity is not possible under the applicable laws then the maximum term possible subject to automatic renewals for further maximum terms unless renewal is expressly objected to in writing), irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such feedback and information without restriction in any manner now known or in the future conceived.

(a) You may use and run the Software as properly installed in accordance with this EULA and solely as set forth in the Documentation. You agree to complete the activation process providing Yottabyte with accurate information. Your use of the Software will be suspended or terminated if you fail to timely pay all fees due under any agreement between you and Yottabyte or if you violate the terms of this EULA. You may not transfer the Software from a Licensed Appliance without our prior written consent.

(b) You may allow third party consultants or contractors to access and use the Software or Documentation on your behalf solely for your internal business operations, provided, they are bound by an agreement with you protecting Yottabyte’s intellectual property with terms no less stringent than this EULA and you ensure that such third party use of the Software complies with the terms of this EULA. If you upgrade or exchange the Software from a previous validly licensed version, you must cease use of the prior version of that Software. You agree to provide written certification of destruction of the previous version of the Software upon Yottabyte’s request.

(c) Except as expressly permitted by this EULA, you may not (i) sell, lease, assign, license, sublicense, distribute or otherwise transfer in whole or in part the Software; (ii) permit any use of or access to the Software by any third party, (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available or operate the Software or Documentation or any features or functionality of the Software on behalf of, or for the benefit of, any unaffiliated third party, including the operation of any service that is accessed by a third party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service; (iv) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software or any part thereof; (v) modify, translate, adapt or otherwise create derivative works or improvements based upon the Software or Documentation, whether or not patentable, or any part thereof; (vi) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software; (vii) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software or Documentation, including any copy thereof; (viii) use the Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including power generation systems, aircraft navigation or communication systems, air traffic control systems or any other transport management systems, safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems or military or aerospace applications, weapons systems or environments; (ix) use the Software in violation of any federal, state or local law, regulation or rule; or (x) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Yottabyte’s commercial disadvantage.

2.5 Yottabyte Tools. Subject to the restrictions contained in this EULA, you may use or distribute the suite of utilities and drivers that may be part of the Software to any third party provided that (i) you only distribute the Yottabyte Tools as a whole in object code format; and (ii) You agree to indemnify, hold harmless, and defend Yottabyte from and against any claims or lawsuits, including attorneys’ fees, that relate to your distribution of Yottabyte Tools.

2.6 Third Party Software. The Software enables you to run multiple instances of third-party Operating Systems and application programs. You are responsible for obtaining and complying with any licenses necessary to operate any such third-party software, including Operating Systems and/or application programs. The terms and conditions of this EULA shall not apply to any Open Source Software accompanying the Software or made available by Yottabyte. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open_source_licenses file accompanying the Open Source Software (“Open Source Software”). The license terms for all such Open Source Software can be found in the open_source_licenses.txt file, other materials accompanying the software package, the documentation or at www.yottabyte.com. You are responsible for obtaining and complying with any licenses necessary to operate any such Open Source Software.

2.7 Data Collection and Privacy. You agree that Yottabyte may collect, use, store and transmit technical and related information about your use of the Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics (“Collected Data”) to facilitate the provisioning of updates, support, invoicing or online services to You. Collected Data is subject to Yottabyte’s Privacy Policy at www.yottabyte.com/privacy-policy. You agree that Yottabyte may use such Collected Data for any purpose related to any use of the Software by you or on your equipment, including but not limited to, improving the performance of the Software or developing updates, or verifying your compliance with the terms of this EULA and enforcing Yottabyte’s rights, including all intellectual property rights in and to the Software or Documentation.

2.8 Audit Rights. During the term of this EULA and for two (2) years after termination or expiration of the EULA or support and subscription services for the applicable Software has expired, You agree to maintain accurate records as to your installation and use of the Software and Documentation, sufficient to provide evidence of compliance with the terms of this EULA. Yottabyte, or an independent third party designated by Yottabyte, may audit, upon written notice to you, your books, records, and computing devices to determine your compliance with this EULA and your payment of the applicable license and support services fees, if any, for the Software. Yottabyte may conduct no more than one (1) audit in any twelve (12) month period. In the event that any such audit reveals an underpayment by You of more than five percent (5%) of the license amounts due to Yottabyte in the period being audited, or that You have breached any term of the EULA, then, in addition to paying to Yottabyte any underpayments for fees and any other remedies Yottabyte may have, You will promptly pay to Yottabyte the audit costs incurred by Yottabyte. Yottabyte’s remedies set forth in this Section 2.8 are cumulative and are in addition to, and not in lieu of, all other remedies Yottabyte may have at law or in equity, whether under this EULA or otherwise.

2.9 Responsibility for Use of Software. You are responsible and liable for all uses of the Software and Documentation through access thereto provided by You, directly or indirectly. Specifically, and without limiting the generality of the foregoing, You are responsible and liable for all actions and failures to take required actions with respect to the Software by your users or any other person or entity to whom You may provide access to or use of the Software or Documentation, regardless of whether such access or use is permitted by or in violation of this EULA.

2.10 Compliance Measures. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Software beyond the scope of the license granted pursuant to this EULA and may be invoked by Yottabyte without notice. You shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.

3. Intellectual Property Rights and Confidentiality.

3.1 Intellectual Property Rights. Yottabyte retains all right, title, and interest in and to the Software, Documentation and all related intellectual property rights. You acknowledge and agree that the Software and Documentation are provided under license, and not sold, to you and that you do not acquire any ownership interest in the Software or Documentation under this EULA, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this EULA. Yottabyte and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software and all intellectual property rights arising out of or relating to the Software or Documentation, except as expressly granted to you in this EULA. You shall safeguard all Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. You shall promptly notify Yottabyte if you become aware of any infringement of Yottabyte’s intellectual property rights in the Software or Documentation and fully cooperate with Yottabyte in any legal action taken by Yottabyte to enforce its intellectual property rights.

3.2 Confidentiality.Confidential Information” shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, planned product features, functionality, performance and software source documents relating to the Software, and other information provided by Yottabyte, whether disclosed orally, in writing, or by examination or inspection, other than information which You can demonstrate (i) was already known to You, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to You; (iii) became generally available in the public domain after disclosure other than through any act or omission of You; (iv) was subsequently lawfully disclosed to You by a third party without any obligation of confidentiality; or (v) was independently developed by You without use of or reference to any information or materials disclosed by Yottabyte or its suppliers. Confidential Information shall include without limitation the Software, Documentation, any Updates, information relating to Yottabyte products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies. You shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall You use the Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service, including any Yottabyte products. In no event shall You disclose any Confidential Information to any third party. Without limiting the foregoing, You shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.

4. No Support.

4.1 No Support or Services Provided under this EULA. Yottabyte is under no obligation to support the Software in any way or to provide any modifications, error corrections, bug fixes, new releases, or other updates to or for the Software (“Updates”) to You. Yottabyte does not provide any support or subscription services for the Software under this EULA. You have no rights to any Updates unless you separately purchase Yottabyte support or subscription services pursuant to a separate agreement between You and Yottabyte. However, Yottabyte may release and make available to you under this Agreement Updates at no additional charges and as determined in its sole discretion. In the event Yottabyte, in its sole discretion, supplies any Update to You under this EULA, such Update shall be deemed Software hereunder and shall be subject to the terms and conditions of this EULA.

4.2 How to Purchase Support. Yottabyte provides various level of support for the Software, subject to the terms of its Enterprise License Agreement and various options for support services which are available at www.yottabyte.com or via authorized distributors. Such license and support services options are subject to fees and charges.

4.3 Optional Yottabyte Cloud Hosting Services. In addition, You may subscribe for limited access to the Yottabyte Cloud hosting services via a separate agreement, the terms of which are located at www.yottabyte.com/terms.

5. Term and Termination.

5.1 Term. This EULA and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).

5.2 Termination. In the event that You fail to comply with the terms of this EULA or any other agreement between You and Yottabyte, your use of the Software may be suspended or this EULA may be terminated automatically and without notice. Yottabyte may also terminate this EULA, effective upon written notice to you, if you, breach this EULA and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured within thirty (30) days after Yottabyte provides written notice thereof to the address you provided in initially registering for the initial download of the Software. Yottabyte may also terminate this EULA, effective immediately, if you file, or have filed against you, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, make or seek to make a general assignment for the benefit of your creditors or apply for, or consent to, the appointment of a trustee, receiver or custodian for a substantial part of your property.

5.3 Effect of Termination. Upon expiration or earlier termination of this EULA, the license granted hereunder shall also terminate, and you shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect your obligation to pay all fees that may have become due before such expiration or termination, or entitle you to any refund.

6. Warranty Disclaimer.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOTTABYTE AND ITS LICENSORS PROVIDE THE SOFTWARE AND DOCUMENTATION ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND YOTTABYTE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Some states or jurisdictions do not allow the exclusion of implied warranties, so the above limitations may not apply to You.

WITHOUT LIMITATION TO THE FOREGOING, YOTTABYTE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE OR DOCUMENTATION WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, ALLOW YOU TO ACCESS YOUR DATA, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (INCLUDING PRIOR OR SUBSEQUENT VERSIONS OF THE SOFTWARE), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

7. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

IN NO EVENT WILL YOTTABYTE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS EULA, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT YOTTABYTE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF YOTTABYTE, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, ARISING OUT OF OR RELATED TO THIS EULA, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO YOTTABYTE FOR THE LICENSE OF THE SOFTWARE PURSUANT TO THIS EULA.

THE LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

8. Governing Law and Dispute Resolution.

8.1 Governing Law. This EULA shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule. Subject to Section 8.2 below, any legal suit, action or proceeding arising out of or related to this EULA or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or state courts located in Oakland County, Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The United Nations Convention for the International Sale of Goods shall not apply.

8.2 Binding Arbitration. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SOFTWARE OR THIS EULA, OR TO ANY SERVICES PROVIDED OR SOLD THROUGH YOTTABYTE WILL BE RESOLVED THROUGH BINDING ARBITRATION, RATHER THAN IN COURT. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages). Arbitration, including the selection of the arbitrator, will be administered by the American Arbitration Association (the “AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. You or Yottabyte may demand arbitration at any time, regardless of whether a lawsuit or other proceeding has previously been commenced. If you demand arbitration, you must send a letter requesting arbitration and describing your claim via U.S. Certified Mail or other overnight, traceable courier, to us at: 1750 S. Telegraph Road, Suite 200, Bloomfield Township, MI 48302. If arbitration proceedings are commenced, You and Yottabyte will each remain solely liable for their attorneys’ fees and expenses incurred in connection with the arbitration. You and Yottabyte agree that this arbitration provision and any resulting arbitration are governed by the Federal Arbitration Act (Title 9 of the United States Code), that federal arbitration laws apply to this EULA and that neither party will be entitled to rely on any arbitration award, finding of fact, or conclusion of law issued in any other arbitration proceeding involving only one of the parties. Notwithstanding the foregoing, You agree that Yottabyte may bring suit in court to enjoin infringement or other misuse of its intellectual property rights. This arbitration provision shall survive the termination of this EULA and any other contract between You and Yottabyte.

8.3 Waiver of Jury Trial. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU WAIVE ANY RIGHT TO A JURY TRIAL.

8.4 Class Action Waiver. YOU AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You shall not be entitled to join or consolidate claims by or against others in any arbitration, or to include in any arbitration any dispute as a representative or member of a class, or on behalf of the general public, or as a private attorney general.

9. General.

(a) Export Regulation. The Software and Documentation may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. By downloading or using the Software, You are certifying that You are not a national of Cuba, Iran, Iraq, North Korea, Sudan, Syria, or any country to which the United States embargoes goods and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. You shall 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 Software or Documentation available outside the U.S.

(b) US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if You are the U.S. Government or any contractor therefor, you shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

(c) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder from Yottabyte to you shall be delivered to you at the locations specified by you when registering the Software or at www.yottabyte.com. If you have any questions about this EULA or the Software, or if you want to contact Yottabyte for any reason, please direct all correspondence to: Yottabyte, LLC, 1750 S. Telegraph Road, Suite 200, Bloomfield Township, MI 48302 or by e-mail at terms@yottabyte.com.

(d) Entire Agreement. This EULA, together with all other documents that are referenced herein constitute the sole and entire agreement between you and Yottabyte with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

(e) Assignment. You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of its obligations or performance, under this EULA, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Yottabyte’s prior written consent. Any purported assignment, delegation or transfer in violation of this paragraph is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this EULA without Your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

(f) No Third Party Beneficiaries. This EULA is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA.

(g) Amendments. This EULA may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

(h) Severability. If any term or provision of this EULA is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction.

(i) Interpretation. For purposes of this EULA, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this EULA as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this EULA; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. All Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this EULA to the same extent as if they were set forth verbatim herein. The headings in this EULA are for reference only and shall not affect the interpretation of this EULA.

Last updated: October 24, 2012