Terms of Service
THESE TERMS OF SERVICE GOVERN CUSTOMER’S ACCESS TO AND USE OF THE GRAX SERVICE.
BY ACCEPTING THESE TERMS OF SERVICE EITHER BY (1) CLICKING THE BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM FOR THE GRAX SERVICE, CUSTOMER AGREES TO THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE TO THESE TERMS, SUCH INDIVIDUAL SHALL NOT ACCEPT THESE TERMS AND MAY NOT USE THE GRAX SERVICE.
These Terms were updated as of 25 March 2020 and are effective between GRAX, Inc. (“GRAX”) and the Customer as of the date Customer accepts these Terms. GRAX may amend these Terms from time to time by posting the amended Terms at [www.grax.com/terms]. Customer’s continued use of the GRAX Service constitutes acceptance of any amended Terms, accordingly we recommend checking the Terms periodically for any amendments.
Capitalized terms used in these Terms shall have the meanings identified below in this Section 1:
b. Authorized User means Customer, and if applicable, the employees of Customer who Customer authorizes to access the GRAX Service for Customer’s internal business purposes. All Authorized Users shall use the GRAX Service in accordance with this Agreement.
c. Confidential Information means nonpublic proprietary information of either party, and any third party information that a party has agreed to treat as confidential, which is either designated in writing as “confidential” 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. In addition, with respect to Customer, all compilations of Customer’s products, prices, product descriptions, specifications, manuals, methods, processes, designs, plans, customer information, supplier information, and financial information that is provided by Customer to GRAX shall be considered to be “Confidential Information” of Customer. 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 accessible 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. For purposes of clarification, Customer Data shall not be deemed to be “Confidential Information”, yet GRAX’s ability to use such Customer Data shall be limited by Section 3.b.
d. Customer means, in the case of an individual accepting these Terms on behalf of himself or herself, such individual, or in the case of an individual accepting these Terms on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting these Terms, and affiliates of such entity which have entered into Order Forms with the Company.
e. Customer Data means data which Customer stores, manages, accesses or other uses 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. Order Form has the meaning set forth in Section 2.a. For an Order Form to be effective, it must be accepted by GRAX (including acceptance by electronic means). Each Order Form shall be a part of and shall be governed by this Agreement. If any terms of an Order Form directly conflict with this Agreement (for the avoidance of doubt, where an Order Form includes additional or more specific terms and conditions with respect to a concept addressed generally in these Terms, no conflict shall be deemed to exist), the terms of the Order Form shall take precedence for the GRAX Service provided under the applicable Order Form, but such conflicting terms shall not affect this Agreement generally or any other Order Form.
i. Term Length has the meaning set forth in Section 7.a.
j. Terms means these Terms of Service.
l. GRAX Service means the GRAX products and services that are licensed by GRAX to Customer on a “software as a service” basis pursuant to this Agreement and/or the applicable Order Form, and shall include, without limitation, future updates and versions of such GRAX products and services.
m. GRAX Technology means any of GRAX’s technology, software, library of codes, processes, tools, and business methods used to provide the GRAX Service.
2. GRAX Service (Access and Use).
b. Right to Access and Use. Subject to these Terms, and as specified in each additional Order Form, GRAX will provide to Customer and its Authorized Users the limited, non-exclusive, non-transferable right to access (including any access protocols necessary to exercise such right) and use the GRAX Service and the related Documentation during the applicable Order Form Term for its internal business purposes, and not for providing data management, analysis or processing to third parties. Any Order Form may be amended by the written agreement of both Customer and GRAX (which may be accomplished via electronic means).
(i) Third Party Services. The GRAX Service integrates with third-party services (e.g. Salesforce.com, etc.) (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 we cannot access or use any applicable Third Party Service, we may not be able to provide all of the functions of its service, and we will not be responsible for any degradation of the GRAX Service. If all or any portion of the GRAX Service is unavailable as a result of issues or failures relating to the Third Party Service, no refund or credit will be provided. You are solely responsible for your 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 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.
(iii) Support. GRAX will provide email and in-app support response 24 hours per day on non-holiday weekdays. Email and in-app questions can be submitted through the help tab in the far right side of the GRAX Application or by emailing email@example.com
. Responses are provided as best effort, over a 24 hour period (coverage provided in EST and IST) with initial response occurring within one business day of initial receipt of submission.
c. Service Rules, Guidelines and Restrictions. Customer shall have the right to use the GRAX Service and Documentation solely for Customer’s 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 violates Customer’s privacy policies or is otherwise 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.
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 Documentation, and other GRAX Intellectual Property Rights, 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 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. GRAX reserves the right, in its sole discretion and without prior notice to Customer, to modify, discontinue, add, adapt or otherwise change any design or specification of the GRAX Service and/or GRAX’s policies, procedures and requirements specified in or related thereto, provided such changes do not materially degrade the functionality, performance or accessibility of the GRAX Service.
b. Customer Data. As between Customer and GRAX, Customer shall own all Customer Data, and except as expressly provided herein or as available publicly, Customer reserves all rights, title and interest in and to the Customer Data. Notwithstanding the foregoing, Customer acknowledges and agrees that GRAX may access and use Customer Data as necessary for providing, maintaining, updating and enhancing the GRAX Service and supporting Customer’s use of the GRAX Service. However, 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.
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 other party only for the purposes authorized by this Agreement and/or as necessary to carry out its obligation and exercise its rights under this Agreement (and in particular, GRAX shall be permitted to use Customer’s Confidential Information to provide the GRAX Service, to prevent or address service or technical problems, to verify service improvements, and to perform GRAX’s other obligations as set forth in and in accordance with these Terms and the Documentation, or in accordance with Customer’s 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 other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and are required to treat such information in accordance with the terms of this Agreement; and (iii) to return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information of the other 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 other party (unless otherwise prohibited by applicable law) and shall have provided such assistance as may be reasonably requested by the other party, at the other party’s sole cost and expense, to limit such disclosure.
b. Security. GRAX agrees, at all times during the Term of the Agreement, to maintain data security in a manner which conforms to generally recognized industry standards and to: (a) maintain commercially reasonable network security using network firewall provisioning, intrusion detection, and vulnerability assessments; (b) preserve the confidentiality, integrity and accessibility of Customer’s Confidential Information, including Customer Data, with administrative, technical and physical measures; (c) 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 (d) 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. Warranties; Limitation of Liability.
a. Warranties. GRAX WARRANTS THAT THE GRAX SERVICE PROVIDED UNDER THIS AGREEMENT SHALL BE PROVIDED IN ACCORDANCE WITH THESE TERMS AND THE APPLICABLE DOCUMENTATION. THE GRAX SERVICE AND ALL OTHER GRAX PRODUCTS, SERVICES AND MATERIALS ARE OTHERWISE PROVIDED BY GRAX “AS IS” AND GRAX DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. GRAX DOES NOT WARRANT OR GUARANTY 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.
b. Limitation of Liability. NEITHER GRAX NOR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WILL BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S OFFICERS, DIRECTORS, EMPLOYEES, USERS, CUSTOMERS OR AGENTS FOR ANY CLAIMS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE NATURE OF THE CLAIM (EVEN IF GRAX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). GRAX’S AGGREGATE LIABILITY FOR ALL CASES AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (WHETHER BROUGHT IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) SHALL NOT EXCEED THE TOTAL MONTHLY FEES PAID BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.
c. Customer acknowledges and agrees that the disclaimers, exclusions and limitations of liability set forth in this Section 5 form an essential basis of this Agreement, and that absent these disclaimers, exclusions and limitations of liability, the terms of this Agreement, including the economic terms, would be substantially different.
6. Pricing and Payment.
a. Payment of Fees and Expenses. Customer shall pay to GRAX, without offset or deduction, the fees as set forth in each Order Form. All payments under this Agreement are to be in U.S. dollars. Unless otherwise provided in the applicable Order Form, all fees shall be payable Net 30 and such payments may be made via a charge to the credit card provided by Customer to GRAX, via payment by check, via automated clearinghouse (ACH), or via any other payment method accepted by GRAX (or any combination of any of the foregoing). If Customer fails to pay any amount payable under this Agreement by the date due, GRAX shall have the right to recover from Customer all expenses of collection (including reasonable legal fees). In addition to any other right or remedy available to GRAX at law or equity under this Agreement, GRAX has the right to suspend or terminate any or all of the GRAX Service for non-payment. GRAX may, in its sole discretion, charge a fee to reinstate a suspended account. Interest charges of 1% per month (or the highest rate permitted by law if lower than 1% per month) will accrue daily on any unpaid balance which is more than 30 days old.
b. Fee Increases. GRAX may provide written notice of its intention to increase fees in any renewal term. Such notice will be provided at least ninety (90) days prior to the beginning of a renewal term. If the proposed new fees are unacceptable to Customer, Customer has the option not to renew as provided in Section 7.a
c. Taxes. Customer is solely responsible for paying any sales, use, value added or other taxes attributed to Customer’s fee for the GRAX Service (and support related thereto), other than taxes on GRAX’s net income.
7. Term and Termination.
a. Term Length. These Terms shall be effective and shall apply to GRAX’s provision of the GRAX Service and Customer’s access to and use of the GRAX Service for so long as Customer agrees to be bound by these Terms or as otherwise set forth in an effective Order Form (the “Term Length”). Unless expressly provided otherwise in an Order Form, the initial term shall begin on the Customer’s acceptance of this Terms of if applicable, the effective date specified in such Order Form, and shall expire on the first anniversary of such date, unless earlier terminated in accordance with these Terms, and thereafter the term shall automatically renew for successive twelve (12) month terms unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
b. Termination for Breach. Either party may terminate Customer’s use of the Service if the other party materially breaches any term or condition of this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of such breach from the other party. Termination of this Agreement or any Order Form shall not constitute either party’s exclusive remedy for breach or non-performance by the other party, and each party shall be entitled to seek all other available remedies, both legal and equitable, including injunctive relief.
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 (as determined by GRAX in its sole discretion), 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 attempt to contact Customer in advance of any such suspension, and, if possible, work with Customer to avert such action, but otherwise shall notify Customer of a suspension under this Section as soon as practicable.
d. Rights and Obligations Upon Termination. Upon termination or expiration of Customer’s use of the GRAX Service for any reason (or in the case of termination or expiration of an Order Form, under that Order Form) (i) all future rights granted under these Terms 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.
e. Survival. All provisions of these Terms 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, Dispute Resolution and General.
8. Indemnification. Customer shall defend, indemnify and hold harmless GRAX, its officers, directors, employees, representatives, and agents, from and against any suit, claim, damages, liabilities and/or losses (including without limitation court costs and reasonable attorneys’ fees) (collectively, “Losses”) arising out of the actual or alleged (a) use or exploitation of the GRAX Service in violation of any applicable law, and (b) use of the GRAX Service other than as authorized by these Terms. GRAX shall defend, indemnify, and hold harmless Customer, its officers, directors, employees, representatives, and agents from and against any Losses arising out of the actual infringement of the intellectual property rights of a third party associated with the GRAX Service. In the event a claim of infringement subject to indemnification is made, or GRAX believes that such a claim is likely to be made, GRAX shall, at its expense, either: (i) procure for Customer the right to continue using the GRAX Service; or (ii) replace or modify the GRAX Service so that they become non-infringing; or (iii) if neither (i) nor (ii) above is commercially reasonable, terminate Customer’s use of the GRAX Service (and the applicable Order Form) and issue a refund for any prepaid but undelivered GRAX Service. Neither party, in its capacity as the indemnifying party (in such capacity, the “Indemnifying Party”) will consent to the entry of a judgment or settle any indemnified claim without the prior written consent, which may not be unreasonably withheld, of the indemnified party (in such capacity, the “Indemnified Party”). The Indemnifying Party will use counsel reasonably satisfactory to the Indemnified Party. If the Indemnified Party reasonably determines that a defense or defenses are available to the Indemnified Party that are not available to the Indemnifying Party, and raising the defense or defenses would create a conflict of interest for the counsel defending the claim, the Indemnified Party will be entitled to retain separate counsel for the purpose of raising these defenses at the Indemnified Party’s expense. The Indemnifying Party’s obligations under this Section are independent of its other obligations under these Terms and shall survive termination of Customer’s use of the GRAX Service.
9. Dispute Resolution. In the event of a dispute between the parties, the parties agree that an executive from each company shall negotiate in good faith in an effort to resolve the dispute. If such dispute is not resolved after such discussion then the parties shall arbitrate their dispute as provided herein. Except for claims seeking injunctive relief for which court relief may be sought, or claims involving Intellectual Property Rights or Proprietary Information, the parties shall arbitrate any dispute resulting from or arising as a result of this Agreement. Any such arbitration shall be in accordance with the commercial rules of the American Arbitration Association ("AAA") and shall be administered by AAA in Boston, Massachusetts, unless the parties mutually agree on an alternate organization for dispute resolution.
10. General. These Terms and any applicable Order Form represent the entire understanding regarding the provision, access to and use of the GRAX Service, and supersedes all prior proposals, agreements and undertakings related thereto, and any deviation from these Terms will require the express written consent of GRAX. Any amendment to these Terms will require the written consent of both GRAX and Customer. Customer may not assign, grant a security interest in, or otherwise transfer its rights or obligations under this Agreement without the prior written consent of GRAX. If Customer acquires a third party entity or acquires substantially all of the assets of a third party entity, or is acquired by a third party, in each case, whether by merger, change of control, sale of assets, consolidation or otherwise, such event shall be considered an assignment of this Agreement for this purpose. Subject to the foregoing limitation, this Agreement is binding upon and inures to the benefit of the successors and assigns of the parties. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws provisions, and the parties agree that any action related to or arising out of this Agreement shall be brought solely in a State or Federal court of competent jurisdiction located in the Commonwealth of Massachusetts, Suffolk County, and the parties irrevocably waive any right to object thereto. No failure or delay by either party in enforcing this Agreement shall be construed as a waiver, nor shall any waiver be effective, unless expressly set forth in a writing signed by such party, and such written waiver will not excuse the performance of any acts other than those specifically referred to therein. If any part, term, or provision of this Agreement is held to be illegal, unenforceable, or in conflict with any law of a Federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions are not to be affected thereby. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service, overnight courier or by first class mail, postage prepaid to the addresses appearing at the beginning of this Agreement, or as changed through written notice to the other party. Notice given by personal service or overnight courier shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third (3rd) business day following its placement in the mail addressed to the addressee. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that such failure or delay is due to any cause or circumstance reasonably beyond the control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike or other labor dispute, acts of terrorism, government requirement, or civil or military authority. The party affected by such an event shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay. GRAX may refer to the fact that Customer is a customer of GRAX on GRAX’s customer lists, advertising and marketing materials, in press releases, presentations and on its website.