Terms of Services Agreement

This Terms of Services Agreement (the “Agreement”) is entered into by and between GRAX, Inc. located at 6 Liberty Square, Suite 2461, Boston, MA 02109 USA (“GRAX”) and the entity providing its information and agreeing to these terms (“Customer” or “you”). This Agreement is effective on the date you click the “I Accept” button (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the “I Accept” button. FOR AVOIDANCE OF DOUBT, IF YOU SIGN UP FOR THE GRAX SERVICES USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” OR “CUSTOMER” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY. This Agreement governs Customer’s access to and use of the GRAX Service.

1. DEFINITIONS AND INTERPRETATION

Capitalized terms used in this Agreement and not defined elsewhere in this Agreement shall have the meanings identified below:

a. Affiliate means an entity that Controls, is Controlled by, or is under common Control with, a party. “Control” means direct or indirect ownership of more than 50% of an entity’s voting interest; or otherwise the power to direct the management of an entity, directly or indirectly.

b. Agreement means this Terms of Services Agreement and the GRAX Privacy Policy, as well as any linked exhibits or attachments to any of the foregoing.

c. Authorized User means Customer, its Affiliates, and if applicable, the employees and consultants of Customer and its Affiliates who Customer or the respective Affiliate authorizes to access the GRAX Service for Customer’s or its Affiliates’ internal business purposes. All Authorized Users shall use the GRAX Service in accordance with this Agreement.

d. Confidential Information means nonpublic proprietary information of either party or its Affiliates, and any third party information that a party has agreed to treat as confidential, which is either designated in writing as “confidential” or “proprietary” or otherwise is of such a nature that it is reasonably obvious the information should be considered to be confidential; provided, that notwithstanding the above, all computer code that forms the basis of the GRAX Service shall be considered “Confidential Information” of GRAX. Notwithstanding the foregoing, no information shall be deemed to be “Confidential Information” for purposes of this Agreement to the extent that the receiving party can establish with competent evidence that such information: (i) was known to the receiving party prior to receipt from the disclosing party and not otherwise subject to an obligation of confidentiality to the disclosing party; (ii) was generally known to the public (including by being lawfully accessible by the public on the Internet) prior to receipt from the disclosing party; (iii) becomes generally known to the public through no fault or omission of the receiving party; or (iv) was received by the receiving party in good faith from a third party who is not subject to an obligation of confidentiality. 

e. Customer Data means all content, data or other information which Customer and its Authorized Users store, manage, access or otherwise use on the GRAX Service.

f. Documentation means, with respect to the GRAX Service, the user documentation that GRAX provides or makes available to Customer at [documentation.grax.io] (including future updates thereto).

g. Intellectual Property Rights means any and all now known or hereafter known or existing patents, copyrights, trademarks, trade secrets, Confidential Information or other intellectual property rights and all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in the foregoing, including moral rights).

h. Term has the meaning set forth in Section 8 below.

i. GRAX Privacy Policy means GRAX’s privacy policy found on the GRAX website (currently found at https://www.grax.com/privacy), as it may be amended by GRAX from time to time.

j. GRAX Service means the free GRAX products and services that are licensed by GRAX to Customer on a “software as a service” basis pursuant to this Agreement and shall include, without limitation, future updates and versions of such GRAX products and services. Any additional GRAX products and services not covered by this Agreement may be purchased by entering into a separate Order Form by the parties for such additional products and services.

k. GRAX Technology means any of GRAX’s technology, software, library of codes, processes, tools, and business methods used to provide the GRAX Service, but specifically excluding Customer Data and Customer Confidential Information.

2. GRAX SERVICE

a. Right to Access and Use. Subject to Customer’s compliance with this Agreement, GRAX grants Customer and its Authorized Users a no cost, limited, non-exclusive, non-transferable, non-sublicensable, license to access and use the GRAX Service and related Documentation solely during the Term in support of Customer’s and its Affiliate’s internal business operations and in accordance with the Documentation. The Customer shall procure and is responsible for its Authorized Users compliance with the terms of this Agreement. 

b. Third Party Services. The GRAX Service integrates with third-party services (e.g. Salesforce.com, etc.) (each a “Third Party Service”) and your use of the GRAX Service may depend on the continuing availability and access to such Third Party Service and any necessary interfaces. If for any reason that is not attributable to GRAX or any third party for which GRAX is responsible, GRAX cannot access or use any applicable Third Party Service, GRAX may not be able to provide all of the functions of its service, and GRAX will not be responsible for any degradation of the GRAX Service. The Customer is solely responsible for its relationship with the Third Party Service provider. The GRAX Service may provide, or third parties may provide, links to other resources, services or sites, or data or other content from third parties. Because GRAX has no control over such third party resources, services or sites, GRAX is not responsible for their availability, and GRAX does not endorse and are not responsible or liable for any data, content, advertising, products, or other materials on or available from such resources, services or sites. GRAX is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such data, content, goods or services available on or through any such resource site or service.

c. Support. All support for this tier can be found on the GRAX Documentation Site (documentation.grax.io)

d. Service Rules, Guidelines and Restrictions. Customer shall have the right to use the GRAX Service and Documentation solely for Customer’s and its Affiliates’ internal business purposes, and shall not allow third parties (other than Authorized Users) to gain access to or use the GRAX Service. Customer shall not use the GRAX Service, or any information obtained through the GRAX Service for any unlawful or unauthorized purpose. In addition, Customer (and Customer’s Authorized Users) shall not use the GRAX Service to: (i) track or collect information in a manner that is illegal; (ii) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (iii) interfere with or disrupt the integrity or performance of the GRAX Service or the data contained therein; (iv) attempt to gain unauthorized access to the GRAX Service or the GRAX Technology; or (v) interfere with another user’s use and enjoyment of the GRAX Service. 

e. Changes to the GRAX Service.
GRAX reserves the right to modify, adapt or change the GRAX Service or the method of providing it, for example, in order to provide new functionality or features or to comply with the applicable legal framework.

3. PROPRIETARY RIGHTS

a. Reservation of Rights. As between Customer and GRAX, GRAX owns all right, title and interest in and to the GRAX Service, the GRAX Technology, the Documentation, the GRAX Confidential Information and all Intellectual Property Rights therein, and subject to the limited rights expressly granted under this Agreement, GRAX reserves all rights, title and interest therein. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement. Customer shall not (i) modify or copy the GRAX Service or the Documentation or create any derivative works based on the GRAX Service or the Documentation, provided that Customer may make reasonable copies or extracts of the Documentation for its internal use; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the GRAX Service or the Documentation available to any third party, other than to Authorized Users as permitted herein; (iii) reverse engineer, disassemble, decompile or otherwise attempt to reconstruct any of the GRAX Service or GRAX Technology, including attempting to obtain the source code for any component of the GRAX Technology; or (iv) use the GRAX Service or the Documentation in any way which violates any applicable laws or regulations. 

b. Customer Data and Reservation of Rights. No right, title or interest in any Intellectual Property Right of Customer or its Authorized Users transfers to GRAX as a result of this Agreement, except for the limited rights stated in the Agreement. As between Customer and GRAX, Customer shall own all Customer Data, Customer Confidential Information and any Intellectual Property Rights therein. Subject to the limited rights expressly granted under this Agreement, Customer reserves all rights, title and interest in and to the Customer Data and any Intellectual Property Rights therein. Notwithstanding anything to the contrary in this Agreement, GRAX shall not access, use, copy, modify, distribute, publish, disclose or process Customer Data, except to the limited extent necessary to provide the GRAX Service and related support to the Customer and its Affiliates in accordance with the terms of this Agreement. GRAX does not control Customer Data and is in no way responsible for the accuracy, integrity or quality of such Customer Data. Under no circumstances will GRAX be liable in any way for any Customer Data, including, but not limited to, for any errors or omissions in any Customer Data, or for any loss or damage of any kind incurred as a result of the use of any Customer Data transmitted via the GRAX Service. Customer must evaluate, and bear all risks associated with, the Customer Data, including any reliance on the accuracy, completeness, or usefulness of such Data.

c. Feedback. To the extent Customer or any Authorized User provides suggestions or feedback to GRAX regarding the functioning, features, and other characteristics of the GRAX Service, Documentation, or other materials or services provided or made available by GRAX (“Feedback”), Customer hereby grants GRAX a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under all of Customer’s Intellectual Property Rights, for GRAX to use and exploit such Feedback in any manner and for any purpose.

d. Aggregated Information. Customer understands and agrees that GRAX may use information (‘Anonymized Aggregated Information’) derived from Customer’s use of the GRAX Service, for internal use and marketing purposes, including without limitation developing and enhancing the GRAX Service, provided that all such information has been first both aggregated with information and data of other GRAX customers and completely anonymized such that Customer and Customer’s Authorized Users, and their respective personal information cannot be directly or indirectly identified. Such Anonymized Aggregated Information shall be owned by GRAX and shall not be considered Customer Confidential Information or Customer Data for purposes of this Agreement.

4. CONFIDENTIALITY AND SECURITY

a. Confidentiality. Each of Customer and GRAX agrees that all items of Confidential Information are proprietary to the disclosing party (or the applicable third party) and will remain the sole property of the disclosing party (or such third party). Each of Customer and GRAX further agrees as follows: (i) to use, reproduce or disclose the Confidential Information disclosed by the disclosing party only for the purposes authorized by this Agreement or as necessary to carry out its obligations and exercise its rights under this Agreement (in particular, GRAX shall be permitted to use Customer’s Confidential Information to the limited extent necessary to provide the GRAX Service to the Customer and its Affiliates, and to perform GRAX’s other obligations in relation to the Customer and its Affiliates as set forth in and in accordance with the terms of this Agreement, or in accordance with Customer’s written instructions), and to otherwise hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (ii) to restrict access to the Confidential Information disclosed by the disclosing party to such of its personnel, agents, and/or consultants, if any, who (x) have a need to have access to such information for the purpose described in subsection (i); and (y) who have been advised of the confidentiality restrictions on such information and are required to treat and protect such information in accordance with the terms of this Agreement; and (iii) to return or destroy all Confidential Information disclosed by the disclosing party that is in its possession upon termination or expiration of this Agreement. Each Party shall, through confidentiality undertakings with its personnel, agents or consultants, or through other appropriate measures, ensure compliance with the above duty of confidentiality and be responsible for any unauthorized disclosure made by such personnel, agents or consultants.

b. Disclosure Under Law. Notwithstanding the foregoing, each party may disclose Confidential Information of the disclosing party to the limited extent required in order to comply with applicable law or court order, provided that the party making the disclosure pursuant to such law or court order shall first have given notice to the disclosing party (unless otherwise prohibited by applicable law) and shall have provided such assistance as may be reasonably requested by the disclosing party, at the disclosing party’s sole cost and expense, to limit such disclosure. The provisions of this Section shall survive any expiration or termination of this Agreement. 

c. Security. GRAX agrees, at all times during the Term of this Agreement, to maintain data security in a manner which conforms to generally recognized industry standards and applicable laws and to: (i) maintain commercially reasonable network security using network firewall provisioning, intrusion detection, and vulnerability assessments; (ii) preserve the confidentiality, integrity and accessibility of Customer’s Confidential Information, including Customer Data, with adequate and appropriate administrative, technical and physical measures; (iii) store, process, and maintain Customer’s Confidential Information solely on designated servers with no Customer Confidential Information transferred to any portable device or storage medium, unless encrypted and for the purpose of either providing technical support services or a designated backup; and (iv) store all Customer Confidential Information in encrypted form, using a commercially supported encryption solution. Customer and each of Customer’s Authorized Users shall be obligated to keep all passwords confidential, and will be responsible for all use of Customer’s and Customer’s Authorized Users’ passwords and Customer’s account. Customer shall notify GRAX immediately of any unauthorized use of any such passwords or Customer’s account used for access to the GRAX Service, or any other known or suspected breach of security related to the GRAX Service.

5. REPRESENTATIONS AND DISCLAIMERS

a. Representations. Each party represents that: (i) it has full power and authority to enter into the Agreement, and (ii) it will comply with all applicable laws, regulations and other legal requirements applicable to its provision or use of the GRAX Service.

b. Disclaimer of Warranty. CUSTOMER ACKNOWLEDGES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GRAX SERVICE IS BEING PROVIDED UNDER THIS AGREEMENT ON AN “AS IS” BASIS. GRAX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. GRAX DOES NOT WARRANT OR GUARANTEE THAT ALL ERRORS CAN OR WILL BE CORRECTED, THAT THE GRAX SERVICE WILL OPERATE WITHOUT ERROR, OR THAT CUSTOMER’S USE OF THE GRAX SERVICE WILL PRODUCE ANY SPECIFIC RESULTS. 

6. INDEMNIFICATION

a. By Customer. Customer will indemnify, defend, and hold GRAX harmless from and against any and all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim: (i) regarding Customer’s Data; or (ii) regarding Customer’s use of the Services in violation of this Agreement.

7. LIMITATION OF LIABILITY

a. Limitation of Liability. IN NO EVENT SHALL GRAX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF THE GRAX SERVICE (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF INFORMATION) HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING TORT, CONTRACT, WARRANTY OR ANY OTHER THEORY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. UNDER NO CIRCUMSTANCES SHALL GRAX’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF ONE THOUSAND DOLLARS (USD $1,000).

8. TERM AND TERMINATION

a. Term and Termination for Breach. This Agreement is effective upon the Effective Date, and will terminate as set forth herein (the “Term”). Notwithstanding anything to the contrary, GRAX may terminate this Agreement immediately if Customer breaches any of these terms and conditions.

b. Termination for Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days written notice to the other party.

c. Right to Suspend. GRAX reserves the right, in its sole discretion, to immediately suspend the provision of the GRAX Service, or any portion thereof, to Customer at any time: (i) if Customer uses the GRAX Service and/or the GRAX Technology in any manner that produces, or is reasonably likely to produce, a detrimental impact on other users or the operation or performance of the GRAX Service or the GRAX Technology; (ii) to protect against the commission of suspected illegal activities, or (iii) unexpected technical or security issues or problems. GRAX will notify Customer in advance of any such suspension unless the situation is such that GRAX cannot reasonably provide advance notice, and, if possible, work with Customer to avert such action. If advance prior notice is not possible, GRAX will notify Customer of a suspension under this Section as soon as practicable. The suspension shall only continue for as long as necessary to remedy the issue causing the suspension. 

d. Rights and Obligations Upon Termination. Upon termination or expiration of Customer’s use of the GRAX Service for any reason (i) all future rights granted under this Agreement to Customer and granted by Customer to GRAX shall terminate, and GRAX shall immediately discontinue Customer’s access to the GRAX Service and any other services provided hereunder, and (ii) Customer shall return all Confidential Information and Documentation related to the GRAX Service, and GRAX shall return to Customer all of Customer’s Confidential Information and any Customer Data that GRAX, its personnel, agents or consultants has access to.

e. Survival. All provisions of this Agreement which by their nature are intended to survive the termination of the Customer’s use of the GRAX Service, shall survive, including without limitation obligations regarding Proprietary Rights, Confidentiality, Disclaimer of Warranties, Limitation of Liability, Rights and Obligations Upon Termination, Indemnification and General.

9. GENERAL

a. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without regard to choice of law rules. The parties hereby consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Boston, Massachusetts, for the purposes of adjudicating any matter arising from or in connection with this Agreement.

b. Entire Agreement. This Agreement and any links and/or attachments constitute the sole and exclusive agreement of the parties governing Customer’s use of the GRAX Service. 

c. Amendment and Severability. This Agreement shall not be amended except in writing, signed by an authorized representative of each of the parties. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation. 

d. Waiver. A waiver of any provision of this Agreement by GRAX shall not constitute a waiver of any of its other rights or remedies hereunder. 

e. Assignment. Customer may not assign this Agreement without the prior written consent of GRAX. GRAX may assign this Agreement without any prior notice to or consent from Customer. 

f. Notices. All notices from Customer to GRAX may be made by emailing help@grax.com and GRAX may give notice by emailing Customer’s contact as specified on the registration form.