Guides

Graphite SEO Platform Terms of Service

Suggest Edits

Last updated: April 29, 2024

These Graphite SEO Platform Terms of Service (this “Agreement”) govern your use, the use by the company or entity on whose behalf you entered this Agreement or that is otherwise identified on the applicable Order Form (“Client”) and the use by Client Community Members (as defined below) of the Services as made available by Graphite Growth, Inc. (“Graphite”). Graphite and Client may be referred to herein collectively as the “Parties” or individually as a “Party”.

  1. AGREEMENT TO TERMS AND CONDITIONS.
    This Agreement is effective, and you agree to be bound by this Agreement, as of the date (a) you first click a button titled “Log In” or something similar, (b) of the Order Form Date specified on the applicable Order Form incorporating this Agreement, or (c) you first use or access the Services, whichever is earlier (“Effective Date”). If you are accepting this Agreement on behalf of Client, you represent and warrant that you have the authority to bind Client to the terms and conditions of this Agreement. If you do not agree to be bound by this Agreement, or do not have the authority to bind Client to this Agreement, then do not use the Services, click “Log In”, or execute an Order Form.
  2. DEFINITIONS.
    1. “Account” means an online account registered by Client or Administrator, or by Graphite on behalf of Client, for the purpose of using the Services.
    2. “Administrator” means the Client or a person that Client has authorized to grant access to the Services to Authorized Users.
    3. “Aggregate Data” means any data or insights developed, derived or aggregated in from any of the following: (i) any Client Materials, Prompts and Output Data; (ii) Client’s and/or its Authorized Users’ and/or Client Community Members’ access to and use of the Services, including, without limitation, any usage data or trends with respect to the Services; and (iii) any other aggregate, derivative or usage data collected or generated in connection with the Services.
    4. “Authorized User” means an individual whom Client has authorized to access and use the Services, including by directing Graphite to provision an Account for such individual, but excluding Client Community Members.
    5. "Client Community Member" means a third-party collaborator of Client or Client’s Authorized Users who may access and use certain limited features of the Services from time to time.
    6. “Client Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Client through the Services or to Graphite in connection with Client’s use of the Services, but excluding, for clarity, (a) any information, data, data models, content or materials owned or controlled by Graphite and made available through or in connection with the Services, (b) Prompts and (c) Output Data.
    7. “Graphite IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services or any Professional Services, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
    8. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
    9. “Order Form” means a mutually executed order form or other mutually agreed upon ordering document issued by Graphite, in each case which references this Agreement and sets forth the applicable Services and/or Professional Services to be provided by Graphite.
    10. “Output Data” means all responses, creations or other outputs generated by any Third-Party Services, including third party generative AI programs and tools.
    11. “Professional Services” means the implementation, managed services and/or other professional services, if any, to be provided by Graphite to Client pursuant to this Agreement.
    12. “Prompts” means all inputs, queries or prompts, and refinements thereto, which are submitted in connection with use or operation of the Services for purposes of being submitted to Third-Party Services in connection with use or operation of the Services, which may include and be based upon Client Materials and other inputs or interactions of Client or Authorized Users with the Services.
    13. “Services” means Graphite’s proprietary hosted technology services via which an Authorized User can use available tools to research topics, organize and optimize written marketing content, and monitor content's performance over time for search engine ranking optimizing and related marketing purposes.
  3. SERVICES; ACCESS AND USE.
    1. Provision of Services. During the Term, and subject to the terms and conditions of this Agreement, Graphite hereby grants Client a limited, non-exclusive, non-transferable (except in compliance with Section 16(vi)), non-sublicensable, revocable right for Client’s Authorized Users to access the Services and use the features and functionality available to use and permit Authorized Users to use the Services in accordance with the terms of this Agreement.
    2. Use Restrictions. Client will not at any time and will not permit any person (including, without limitation, Authorized Users and Client Community Members) to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Services, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Services to any other person, or otherwise allow any person to use the Services for any purpose other than for the benefit of Client in accordance with this Agreement and to Client Community Members to the limited extent expressly permitted by this Agreement; (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that stores, shares or transmits content which is unlawful, infringing, harmful or that violates any person’s rights, including privacy rights and Intellectual Property Rights, or any other manner or for any other purpose that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vii) circumvent any access or use restrictions put into place to prevent certain uses of the Services; (viii) attempt to disable, impair, or destroy the Services; or (ix) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Graphite for use expressly for such purposes; or (x) use the Services, or any other Graphite Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
    3. Authorized Users. Client will not allow any person other than Authorized Users to access or use the Services. Client may permit Authorized Users to access and use the Services, provided that Client ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Client is responsible for acts or omissions by Authorized Users in connection with their access to and use of the Services. Client will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will immediately notify Graphite if Client knows or reasonably suspects that any user name and/or password has been compromised or of any unauthorized use of the Account.
    4. Client Community Members. The Parties acknowledge that Client Community Members may have access to certain limited features of the Services, solely to the extent contemplated by or enabled by functionality of the Services as Graphite may determine from time to time at its sole discretion. Client may permit Client Community Members to access such designated features and functionality of the Services, provided that Client is responsible for all acts or omissions by Client Community Members in connection with their use of the Services, the Client Community Members’ compliance with the terms and conditions of this Agreement, and Client Community Members’ compliance with the terms of the acceptable use notice here available at https://docs.graphitehq.com/docs/graphite-growth-content-tool-acceptable-use-notice (“Community Acceptable Use Terms”). Client acknowledges and agrees that the functionality and features of the Services accessible to Client Community Members may permit Client Community Members to view, modify and update Client Materials or other information accessible to Authorized Users via the Services. Client is solely responsible for verifying the contributions of Client Community Members. Graphite is not responsible for any conduct of Client Community Members. Client agrees to promptly report any known violations of the terms of this Agreement or the Community Acceptable Use Terms by any Client Community Member to Graphite.
    5. Professional Services. Subject to Client’s cooperation and assistance, including as described in Section 3(vi), Graphite will provide the professional services described in one or more statements of work entered into by the Parties under this Agreement for the performance of managed services (“Professional Services”). Each such statement of work (“Statement of Work”) will specifically identify this Agreement, and when executed by both Parties, will form a part of this Agreement and be subject to the terms and conditions contained here. Graphite will use commercially reasonable efforts to perform the Professional Services described in each executed Statement of Work in accordance with the terms and conditions set forth in such Statement of Work and this Agreement. Graphite will perform Professional Services in a professional and workmanlike manner.
    6. Client Responsibilities. In connection with the provision of Professional Services, Client will: (i) provide timely access to appropriate Client personnel who will promptly grant approvals and otherwise make any necessary decisions with respect to the Professional Services provided by Graphite; and (ii) perform Client’s duties set forth in the applicable Statement of Work (if any), in each case through qualified personnel who are capable of performing Client’s duties and tasks under the Agreement. Client will also make available to Graphite any systems, data, information, and any other materials required by Graphite to perform the Professional Services in a Statement of Work. Client will be responsible for ensuring that all such materials and information are accurate and complete such that Graphite will not be required to independently test, verify or audit such information.
    7. Access to Certain Client Materials by Authorized Users. Client acknowledges and agrees that each Account user (including Authorized Users) may access any and all Client Materials. Client is solely responsible for ensuring each prospective Authorized User is permitted to access or view such Client Materials prior to such individual being designated an Authorized User and provided an Account.
  4. THIRD-PARTY SERVICES AND SOFTWARE.
    Certain features and functionalities within the Services may allow Client, its Authorized Users, and Client Community Members to interface or interact with, access and/or use compatible third-party services, products, technology and content, including generative AI tools and related large language models maintained by third parties and the Output Data generated by such AI models and tools (collectively, “Third-Party Services”) through the Services. Graphite does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. The Third-Party Services’ terms will govern use of the Third-Party Services, including rights with respect to Output Data. As between Graphite and Client, subject to applicable law, to the extent Graphite has any right, title or interest in or to Output Data, Graphite will pass on such rights in those Output Data to Client.
  5. GRAPHITE’S INTELLECTUAL PROPERTY RIGHTS.
    1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Graphite reserves and, as between the Parties will solely own, the Graphite IP and all rights, title and interest in and to the Graphite IP. No rights are granted to Client hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
    2. Feedback. From time to time Client or its employees, contractors, Client Community Members or representatives may provide Graphite with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Client hereby grants Graphite a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Graphite’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.
  6. CHANGES TO THE SERVICES AND THIS AGREEMENT.
    1. Changes to the Services. Graphite reserves the right to at any time modify or update the Services (or any part or content thereof) or the ability to interface or interact with, access and/or use Third-Party Services, without advance notice. Other than with respect to Third-Party Services, Graphite will use reasonable efforts to ensure that changes to the Services will not materially decrease functionality of the Services. We will not be liable to you or to any third-party for any modification, price change or suspension of the Services or the ability or inability to interface or interact with, access and/or use Third-Party Services.
    2. Changes to this Agreement. This Agreement may be amended or modified by a written document executed by duly authorized representatives of the Parties; however, Graphite may also from time to time update, modify or amend this Agreement, which modifications will take effect at the next Renewal Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 14(i). In some cases Graphite may specify that amendments or modifications to this Agreement become effective during your Initial Term or then-current Renewal Term. If the effective date of such modifications is during your Initial Term or then-current Renewal Term and you object to the modifications, then (as your exclusive remedy) you may terminate your use of the Services upon notice to Graphite as set forth in Section 16(ii).
  7. FEES AND PAYMENT.
    1. Fees. Client will pay Graphite fees set forth in the applicable Order Form (if any), in each case, in accordance with the terms of this Agreement (collectively, “Fees”) and without offset or deduction. Except as otherwise provided in the relevant Order Form, Graphite will issue monthly invoices to Client during the Term, and Client will pay all amounts set forth on any such invoice no later than fifteen (15) days after the date of such invoice.
    2. Payments. Payments due to Graphite under this Agreement must be made in U.S. dollars by wire transfer of immediately available funds to an account designated by Graphite or such other payment method as contemplated in this Agreement or mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Client fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Graphite may suspend or terminate Services until all payments are made in full. Client will reimburse Graphite for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. Client is responsible for providing complete and accurate billing and contact information and to update Graphite of any changes to such information.
    3. Taxes. Client is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Client to Graphite hereunder, other than any taxes imposed on Graphite’s income. Without limiting the foregoing, in the event that Client is required to deduct or withhold any taxes from the amounts payable to Graphite hereunder, Client will pay an additional amount, so that Graphite receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
  8. CONFIDENTIAL INFORMATION.
    1. Definitions. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services (other than the public facing aspects and features made available by Graphite to Client Community Members) will be deemed Confidential Information of Graphite. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
    2. Confidentiality Obligations. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
    3. Terms of this Agreement. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
  9. CLIENT MATERIALS, DATA AND PROMPTS.
    1. Retained Rights in Client Materials. Graphite acknowledges that, as between Client and Graphite and except as set forth in Section 9(ii), Client owns and retains all right, title and interest in and to all Client Materials.
    2. Client Materials and Prompts. Client hereby grants Graphite a non-exclusive, worldwide, royalty-free right and license (i) to use, host, reproduce, display, perform, modify the Client Materials, and to the extent Client has any right, title or interest therein, Prompts and Output Data, for the purpose of hosting, operating, improving and providing the Services, Professional Services and Graphite’s other related products, services and technologies, including to train and improve Graphite’s artificial intelligence and machine learning models, and, sublicense the Client Materials, Prompts and Output Data to the extent required to provide the Services and Professional Services, which may include the use of generative AI tools and related large language models maintained by third parties, and (ii) to use and modify Client Materials (including Client Materials which are Confidential Information of Client) for purposes of developing and deriving Aggregate Data in a form that will not be disclosed to third parties in a manner that is attributable to Client. Client hereby represents, warrants, and covenants to Graphite that no Confidential Information of Client is or will be included in any Prompts input or provided to be input into the Services. Graphite will have no liability to Client or any other person for the use or disclosure of any information or data provided as or included in any Prompt, even if otherwise designated as or considered to be confidential or proprietary to Client.
  10. REPRESENTATIONS AND WARRANTIES.
    1. Mutual. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
    2. Client’s Additional Representations. Client represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Client Materials (including any personal data provided or otherwise collected pursuant to Client’s privacy policy) as contemplated by this Agreement; and (ii) Graphite’s use of the Client Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Client and any third party.
  11. INDEMNIFICATION.
    1. Graphite Indemnification. Subject to Section 11(ii), Graphite will defend Client against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Graphite’s proprietary software powering the Services infringes or misappropriates such third party’s copyrights, and will indemnify and hold harmless Client against any damages and costs awarded against Client or agreed in settlement by Graphite (including reasonable attorneys’ fees) resulting from such Claim.
    2. Exclusions. Graphite’s obligations under Section 11(i) will not apply if the underlying third-party Claim arises from or as a result of: (i) any Client Materials, Third-Party Services or Output Data; (ii) Client’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Graphite; (iii) modifications to the Services by anyone other than Graphite; or (vi) the act or omission of any Authorized User or Client Community Member, (including any breach of the Community Acceptable Use Terms), or (v) combinations of the Services with software, data or materials not provided by Graphite.
    3. Client Indemnification. Client will defend Graphite against Claims arising from (i) any Client Materials or Prompts, including, without limitation, (A) any Claim that the Client Materials or Prompts infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Client Materials or Prompts violates any applicable law, rule or regulation; (ii) Client’s use or misuse of any Output Data; and (iii) access to or use of the Services by Client or its Authorized Users or Client Community Member in a manner that is not in accordance with this Agreement, including, without limitation, any breach of the license restrictions in Section 3(ii)or the Community Acceptable Use Terms, and in each case, will indemnify and hold harmless Graphite against any damages and costs awarded against Graphite or agreed in settlement by Client (including reasonable attorneys’ fees) resulting from such Claim.
    4. Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
  12. DISCLAIMER.
    1. General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, PROFESSIONAL SERVICES AND OTHER GRAPHITE IP ARE PROVIDED ON AN “AS IS” BASIS, AND GRAPHITE MAKES NO WARRANTIES OR REPRESENTATIONS TO CLIENT, ITS AUTHORIZED USERS, CLIENT COMMUNITY MEMBERS, OR TO ANY OTHER PARTY REGARDING THE SERVICES, PROFESSIONAL SERVICES, THE GRAPHITE IP, THIRD-PARTY SERVICES, CONDUCT OF CLIENT COMMUNITY MEMBERS, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GRAPHITE HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, GRAPHITE HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES, PROFESSIONAL SERVICES OR THIRD-PARTY SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. GRAPHITE DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CLIENT OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGES ARISING FROM ANY THIRD-PARTY SERVICES OR CONDUCT OF CLIENT COMMUNITY MEMBERS OR OUTPUT DATA OR ANY ACTION TAKEN UNDER THE THIRD-PARTY SERVICE’S TERMS. CLIENT ACKNOWLEDGES SOLE RESPONSIBILITY FOR AND ASSUMES ALL RISK ARISING FROM ITS USE OF ANY THIRD-PARTY SERVICES, CONDUCT OF CLIENT COMMUNITY MEMBERS AND OUTPUT DATA.
    2. Disclaimer of Output Data. The Services may permit Client’s access to and use of third party generative AI tools. It is important to note that, similar to any new technology that leverages AI models, the Services and such Third-Party Services have their limitations and potential bugs. CLIENT ACKNOWLEDGES AND AGREES THAT THE QUALITY OF THE PROMPTS WILL IMPACT THE QUALITY OF THE OUTPUT DATA. IF THE PROMPT IS INACCURATE, INCOMPLETE, OR INCONSISTENT, THE OUTPUT DATA WILL LIKELY REFLECT THESE DEFICIENCIES. GRAPHITE DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF THE OUTPUT DATA OR THAT IT WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY SPECIFIC RESULTS. CLIENT FURTHER ACKNOWLEDGES AND AGREES BY THE NATURE OF THE SERVICES AND THIRD-PARTY SERVICES, OUTPUT DATA MAY CONTAIN INFORMATION THAT IS FALSE, MISLEADING, INACCURATE, OR WHICH INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR OTHER APPLICABLE LAW; AND THAT THE SERVICES AND THIRD-PARTY SERVICES MAY PRODUCE OUTPUT DATA FOR THIRD PARTIES WHICH RESEMBLE THE OUTPUT DATA PROVIDED TO CLIENT BUT WHICH WERE CREATED USING DIFFERENT PROMPTS.
  13. LIMITATIONS OF LIABILITY.
    1. Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CLIENT’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE GRAPHITE IP OR THE PROVISION OF THE SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
    2. Total Liability. IN NO EVENT WILL GRAPHITE’S TOTAL LIABILITY TO CLIENT, ITS AUTHORIZED USERS OR ANY CLIENT COMMUNITY MEMBER IN CONNECTION WITH THIS AGREEMENT, THE GRAPHITE IP OR THE PROVISION OF THE SERVICES OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CLIENT TO GRAPHITE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT GRAPHITE OR CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
    3. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 13 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN GRAPHITE AND CLIENT, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
  14. TERM AND TERMINATION.
    1. Term. The initial term of this Agreement begins on the Effective Date and expires one year following the Effective Date, unless otherwise specified in the relevant Order Form (the “Initial Term”). In the event Client signed up for the Services without an Order Form, the Initial Term will be for one month following the Effective Date. Following the Initial Term, this Agreement will automatically renew for additional consecutive one-year periods, unless some other period is specified in the relevant Order Form, or, if the Client signed up for the Services without an Order Form, one-month periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless, subject to Section 16(ii), either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the Initial Term or then-current Renewal Term.
    2. Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
    3. Survival. This Section 14(iii) and Sections 1, 2, 3(ii), 5, 7(iii), 8, 10,11,12,13, 14(iv), and 16 survive any termination or expiration of this Agreement.
    4. Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 3(i) will terminate; and (ii) Client will return or destroy, at Graphite’s sole option, all Graphite Confidential Information in its possession or control. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Client to any refund.
  15. TRADEMARKS.
    Client hereby grants Graphite a limited, non-exclusive, royalty-free license to use and display Client’s name, designated trademarks and associated logos (the “Client Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Services; and (ii) Graphite’s marketing and promotional efforts for its products and services, including by publicly naming Client as a customer of Graphite and in case studies. All goodwill and improved reputation generated by Graphite’s use of the Client Marks inures to the exclusive benefit of Client.
  16. GENERAL.
    1. Entire Agreement. This Agreement, together with corresponding Order Forms, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.
    2. Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the Order Form or provided when Client signed up for the Services or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 16(ii). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party; or (iv) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.
    3. Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
    4. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
    5. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
    6. Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, Graphite may assign or transfer this Agreement to a third party that succeeds to all or substantially all of Graphite’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
    7. Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 or, in the case of Client, Section 3(ii), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    8. Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
    9. Export Regulation. Client affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States. Without limiting the generality of the foregoing, Client represents and agrees that it is not, and will not permit exports, re-exports or transfers to third parties who are: (i) subject to the restriction of a sanctions or export denial list, including, but not limited to, the U.S. Specially Designated Nationals and Blocked Persons (“SDN”) List and the U.S. Entity List, Unverified List and Denied Persons List; (ii) any individual or entity ordinarily resident in or organized under the laws of a region subject to a comprehensive U.S. embargo (presently including Cuba, Iran, Syria, North Korea and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine); (iii) using the Services for any purpose prohibited by applicable export control and sanctions laws and regulations, including, but not limited to, nuclear, chemical, or biological weapons proliferation, rocket, missile or unnamed aerial vehicle systems for use in delivering weapons, use in nuclear facilities not subject to IAEA safeguards, other restricted nuclear activities, military-intelligence, unauthorized surveillance activities or human rights abuses, for a military end user or end use in a country subject to an arms embargo, or activities in China relating to supercomputers and production of specific types of advanced chips; or (iv) a party requiring Graphite to obtain a government license or authorization under the applicable export control and sanctions laws in order to provide, export, re-export, or transfer its products and services.
    10. U.S. Government End Users. The Services and related software were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Services and related software by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client will immediately discontinue its use of the Services and related software.
    11. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
    12. No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the Parties and their respective successors and assigns.

Acceptable Use Notice

Updated 4 months ago