1. YOUR ACCEPTANCE
1.2 ALTHOUGH WE MAY ATTEMPT TO NOTIFY YOU WHEN MAJOR CHANGES ARE MADE TO THESE TERMS OF SERVICE, YOU SHOULD PERIODICALLY REVIEW THE MOST UP-TO-DATE VERSION https://www.graphcall.com/terms.jsp. GRAPHCALL MAY IN ITS SOLE DISCRETION, MODIFY OR REVISE THE TERMS OF SERVICE, AND YOU AGREE TO BE BOUND BY SUCH MODIFICATIONS OR REVISIONS.
1.3 THE SERVICE MAIN CONTAIN LINKS TO THIRD PARTY WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY GRAPHCALL. GRAPHCALL HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, THE CONTENT, PRIVACY POLICIES, OR PRACTICES OF ANY THIRD PARTY WEBSITES. IN ADDITION, GRAPHCALL WILL NOT AND CANNOT CENSOR OR EDIT THE CONTENT OR ANY THIRD-PARTY SITE. BY USING THE SERVICE, YOU EXPRESSLY RELIEVE GRAPHCALL FROM ANY AND ALL LIABILITY ARISING FROM YOUR USER OF ANY THIRD-PARTY WEBSITE.
You may not access the Services if you are GraphCall’s direct competitor, except with GraphCall’s prior written consent. In addition, you may not access the Services for purposes of monitoring the availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 24,2018
2.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2.2. “Ancillary Services” means fee-based consulting or training services GraphCall may perform pursuant to a statement of work (“SOW”) hereunder such as services to support or convert, synchronize, modify templates or otherwise assist in the production and hosting of presentations in the GraphCall format.
2.3. “Customer Materials” means all electronic data, audio (including music), video, pictographic, and written content, and files, or any other information supplied by you, including drafts, updates, and derivative works of the foregoing, for use together with the Subscription Services, but excluding presentation templates, sample or demonstration content or files utilized or provided by GraphCall as part of the Services.
2.4 Autopilots mean the proprietary format created and patented by GraphCall consisting in the automated synchronization of video, mind-map visualization and animation, and PDF navigation and annotations. 2.5 Nodes mean the visual circle element representing visual database elements, containing customer materials interconnected by relationships as defined herein. 2.6 Relationships mean arrow circle element representing visual interconnecting database elements, containing customer materials as defined herein. 2.7. “Documentation” means the online documentation made generally available by GraphCall, as updated from time to time.
2.8. “GraphCall” means software tools and other applications supplied by GraphCall for installation or access by you for use in conjunction with the Subscription Services, including any optional modules, updates and upgrades, including associated offline components but excluding Third Party Applications.
2.9. “Order Form” means the ordering documents for Services purchased from GraphCall that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein. Customer Affiliates may purchase subscriptions and use the Application subject to the terms of this Agreement by executing Order Forms hereunder.
2.10. "Subscription Services" means the online, web-based DocuTalks provided by GraphCall via the URL www.graphcall.com, docutalk.io and/or other designated websites as described in the Documentation for synchronizing and delivering live and on-demand video, audio, PDF, footnotes, attachments, and images, that are ordered by you as part of any Free Services registration or under an Order Form, including associated support and maintenance activities related to the foregoing.
2.11. “Services” means the Subscription Services and/or any Ancillary Services.
2.12 “Third Party Applications” means online, Web-based applications and offline software products that are provided by third parties, and that interoperate with the Subscription Service.
2.13 “User” means individuals who are authorized by you to use GraphCall and who have been supplied user identifications and passwords for the purpose of accessing the Subscription Services. Users may include but are not limited to your or your Affiliates’ employees, consultants, contractors and agents.
3. Your User of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
3.1 Content provided AS IS. Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by GraphCall on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of GraphCall or the respective licensors of the Content. GraphCall and its licensors reserve all rights not expressly granted in and to the Service and the Content.
3.2 No security circumvention. You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or prevent access or copying of any Content or enforce limitations on use of the Service or the Content therein.
3.3 No Objectional content. You understand that when using the Service, you will be exposed to Content from a variety of sources, and that GraphCall is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against GraphCall with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless GraphCall, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
4. FREE SERVICES.
4.2. Customer Materials During Free Services Term. ANY CUSTOMER MATERIALS YOU ENTER INTO THE GRAPHCALL APPLICATIONS, AND ANY CHANGES MADE TO THE CUSTOMER MATERIALS BY OR FOR YOU DURING YOUR FREE SERVICES TERM WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED DURING THE FREE SERVICES TERM, PURCHASE UPGRADED SERVICES, OR EXPORT YOUR CUSTOMER MATERIALS BEFORE THE END OF THE FREE SERVICES TERM.
4.3. AS-IS FREE SERVICES. NOTWITHSTANDING SECTION 8 (WARRANTIES; DISCLAIMERS), DURING THE FREE SERVICES TERM THE SUBSCRIPTION SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND. Please review the Documentation during the Free Services Term so that you become familiar with the features and functions of the Subscription Services before you make your purchase.
4.4. Purchase of Ancillary Services During Free Services Term. Your purchase, if any, of Ancillary Services to be performed during the Free Services Term are governed by Section 3.3 below and this Agreement.
5. PURCHASED SERVICES
5.1. Provision of Purchased Subscription Services. GraphCall will make any purchased Subscription Services available to you pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that your purchases under this Agreement and each Order Form are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by GraphCall regarding future functionality or features. Unless otherwise set forth in an Order Form, the terms of this Agreement will apply to any updates, upgrades and new modules or offerings subsequently provided by GraphCall to you as part of the Services.
5.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Subscription Services are purchased as per-User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
5.3. Ancillary Services. GraphCall will provide you with Ancillary Services as set forth in the applicable SOW mutually executed by GraphCall and you. Each SOW will include, at a minimum: (i) a description of the Ancillary Services and any work product or other deliverables to be developed and/or provided to you (each, a “Deliverable”); (ii) the scope of Ancillary Services; (iii) the schedule relating to the provision of such Ancillary Services; and (iv) the applicable fees and payment terms for such Ancillary Services, if not elsewhere specified. All SOWs shall be deemed part of and subject to this Agreement. If either you or GraphCall request a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Ancillary Services described in any SOW, the party seeking the change shall propose the applicable changes by written notice. Promptly following receipt of the written notice, each party’s project leads shall meet, either in person or via telephone conference, to discuss and agree upon the proposed changes. GraphCall will prepare a change order describing the proposed changes to the SOW and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement. In the event that the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management officers for resolution.
6.1. Provision of Subscription Services. GraphCall will: (i) provide to you basic support for the purchased Subscription Services at no additional charge, and/or upgraded support if made available by GraphCall and purchased separately; (ii) use commercially reasonable efforts to make the purchased Subscription Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which GraphCall will endeavor to provide at least 8 hours notice, and which GraphCall shall schedule to the extent practicable during the weekend hours from 9:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond GraphCall’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays; (iii) maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Materials (the same as GraphCall uses to protect its data) and will use commercially reasonable efforts to correct the Customer Materials or restore the Customer Materials as quickly as possible; and (iv) provide the Services in accordance with applicable laws and government regulations.
6.2. Provisioning of GraphCall Applications. GraphCall will host relevant GraphCall Applications (except for off-line components or applications) and may update the functionality and user interface of the Subscription Services from time to time in its sole discretion as part of its ongoing mission to improve the Subscription Services and customers’ use of the Subscription Services. Certain GraphCall Applications or portions of the Subscription Services may be subject to other limitations, such as, for example, limits on disk storage space, limits on the number of presentations in an annual period for Autopilots on Demand, or limits on monthly viewer hours for live streaming. Any such limitations will be specified either in the Order Form or in the Documentation.
6.3. Content License for Customer Materials recorded under the private or public restricted mode. Subject to the terms and conditions of this Agreement, including GraphCall’s confidentiality obligations, if you record nodes and relationship under the private mode, or autopilots under the public restricted mode you hereby grant GraphCall a limited, non-exclusive, royalty-free, worldwide license to use the Customer Materials and perform all acts with respect to the Customer Materials as may be necessary for GraphCall to provide the Services to you. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Materials.
6.4. Content License for Customer Materials recorded under the public mode. Subject to the terms and conditions of this Agreement, including GraphCall´s confidentiality obligations, if you record nodes and relationships under the public mode, or autopilots under the public mode, you retain all of your ownership rights in your Content as expressly set forth herein. However, by submitting Content to GraphCall, you hereby grant GraphCall a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and GraphCall's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your autopilots from the Service. You understand and agree, however, that GraphCall may retain, but not display, distribute, or perform, server copies of your autopilots that have been removed or deleted.
6.5. No third party copyrighted material. You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein.
6.6. No Endorsement of content. GraphCall does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and GraphCall expressly disclaims any and all liability in connection with Content. GraphCall does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and GraphCall will remove all Content if properly notified that such Content infringes on another's intellectual property rights. GraphCall reserves the right to remove Content without prior notice.
6.7. Customer Responsibilities. You are responsible for your Users’ compliance with the terms of this Agreement and for your Users’ use of the Services, and for ensuring that Users maintain the confidentiality of their passwords and user names. You agree that you will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services or any GraphCall Application available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iii) submit to the Subscription Services any data comprised of either Protected Health Information subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver’s license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; (iv) send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (v) interfere with or disrupt the integrity or performance of the Subscription Services; or (vi) attempt to gain unauthorized access to the Subscription Services or its related systems or networks; (vii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services; (ix) access the Subscription Services or download a GraphCall Application for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Subscription Services; (x) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the GraphCall Applications or Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the GraphCall Applications or Subscription Services.
6.8. Temporary Suspension. GraphCall monitors all use of the Subscription Services for the security and operational purposes. GraphCall may temporarily suspend access to the Application in the event a User is engaged in, or GraphCall in good faith suspects is engaged in, any unauthorized conduct (including any violation of the terms of this Agreement, any applicable law or third party right). GraphCall will attempt to contact you prior to or contemporaneously to such suspension, provided, however, that GraphCall’s exercise of the suspension rights herein shall not be conditioned upon your receipt of any notification. You agree to (i) notify GraphCall immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to GraphCall immediately and use reasonable efforts to stop immediately any copying or distribution of Customer Material that is known or suspected by you or your User as being unlawful or unauthorized; and (iii) not impersonate another user or provide false identity information to gain access to or use the Subscription Services or GraphCall Application. The suspension is for the entire account and you understand that such suspension would therefore include Affiliate sub-accounts. You agree that GraphCall shall not be liable to you or to any Affiliate or other third party if GraphCall exercises its suspension rights as permitted by this Section.
6.9. Third-Party Web Sites, Products and Services. GraphCall may offer certain Third Party Applications for sale under Order Forms. Any purchase of such Third Party Applications by you shall be subject to the terms specified in such Order Forms or in the applicable clickthrough or similar agreement required by the applicable licensor(s). In addition, GraphCall may make available (through the Subscription Services) or certain third party providers may offer links to other websites, resources, Third Party Applications or services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services. GraphCall does not warrant any such Third Party Applications or services, whether or not such Third Party Applications are designated by GraphCall as “certified,” “approved”, “recommended” or otherwise, or the services are provided by a third party that is a member of a GraphCall partner program. Any purchase by you of any Third Party Applications or services is solely between you and the applicable third party provider.
6.10. Accuracy of Customer’s Contact Information; Email Notices. You agree to provide accurate, current and complete information on your legal business name, address, email address and phone number, and maintain and promptly update this information if it should change. You agree to accept emails from GraphCall at e-mail address specified by your Users for login purposes. GraphCall may provide any and all notices, statements, and other communications to you through either e-mail, posting on the Subscription Services (or other electronic transmission) or by mail or express delivery service. In addition, you agree that GraphCall may rely and act on all information and instructions provided to GraphCall by Users from the above-specified e-mail address.
6.11. Federal Government End User Provisions. If you or any User is the US Federal Government, or any other government agency from any country and has a need for rights not conveyed under these terms, it must negotiate with GraphCall to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreements.
6.12. Use of Pre-Release GraphCall Applications. From time to time, GraphCall may make available to you pre-release versions of the GraphCall Applications (“Pre-Release Offerings”) as part of its product testing and development activities. Except as set forth in this Section 4.9, the terms of this Agreement will apply to your use of any Pre-Release Offerings. YOU ACKNOWLEDGE AND AGREE THAT THE PRE-RELEASE OFFERINGS MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY GRAPHCALL. YOU UNDERSTAND AND AGREE THAT THE PRE-RELEASE OFFERINGS ARE EXPERIMENTAL. THE PRE-RELEASE OFFERINGS ARE SUPPLIED TO YOU FOR YOUR AT YOUR OWN RISK, EXCLUSIVELY ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, AND GRAPHCALL SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. GRAPHCALL DISCLAIMS ANY AND ALL LIABILITY WHATSOEVER FOR YOUR USE OF THE PRE-RELEASE OFFERINGS. While GraphCall’s present intentions are to develop and generally release a commercial product from the Pre-Release Offerings, GraphCall does not commit, promise, or agree to finally release and/or offer for sale the Pre-Release Products whether or not perfected. GraphCall reserves the right to cease and abandon the Pre-Release Offerings at any time without any obligation or liability whatsoever to you.
7. FEES AND PAYMENT TERMS
7.1. Fees. You agree to pay all fees specified in all Order Forms hereunder. Except as otherwise specified in this Agreement or in an Order Form, (i) fees are quoted and payable in United States dollars or in the local currency GraphCall deems acceptable at the FX rate to the United States dollars determined at the time of purchase (ii) fees are based on Services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form.
7.2. Invoices and Payment. Except for Credit Card Payments under Section 5.3 below, Subscription Service fees will be invoiced in advance and otherwise in accordance with the applicable Order Form. Fees for Ancillary Services will be invoiced as set forth in an applicable Statement of Work and/or Order Form. Except as otherwise set forth in the applicable Order Form or Statement of Work, you agree to pay all invoiced amounts via wire transfer within thirty (30) calendar days of the invoice date.
7.3. Payment by Credit Card. GraphCall is pleased to accept payment for certain Services by the supported credit/debit cards set forth on our website (“Credit Card Payments”) under the terms and conditions in this Section and any other supplementary terms disclosed to and accepted by you during the payment process, including terms imposed by the applicable Credit Card Payment processor acting on GraphCall’s or your behalf. If you purchase Subscription Services through an online order and pay by credit card, Subscription Service fees shall be due and payable immediately and shall not require the issuance of a corresponding invoice. The processing of a Credit Card Payment shall require the collection of pertinent information including the credit card number, expiration date, name and CVV2 code as it appears on the credit card. Additional required information may include but not be limited to the credit card billing address, a valid e-mail address and phone number of the purchaser, and a valid sales tax exemption number when applicable. Provisioning of the Services that are purchased by Credit Card Payment shall be subject to confirmation of payment receipt in full at the sole discretion of GraphCall. By using a credit/debit card to pay for the Services, you confirm that the card being used is yours. All credit card holders are subject to validation checks and authorization by the card issuer and GraphCall is not obliged to inform you of the reason for any refusal. GraphCall bears no responsibility for your card issuer or bank charging you as a result of GraphCall’s processing of your Credit Card Payment in accordance with your instructions.
7.4. Overdue Charges.If GraphCall does not receive fees by the due date, then at GraphCall’s discretion, (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (ii) GraphCall may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
7.5. Suspension of Service and Acceleration.If any amounts you owe under this Agreement for the Services are 60 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized GraphCall to charge to your credit card), GraphCall may, without limiting GraphCall’s other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend your access to the Services or use of any GraphCall Application until such amounts are paid in full.
7.6. Payment Disputes. GraphCall agrees that it will not exercise its rights under Section 5.4 (Overdue Charges) or 5.5 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and you are cooperating diligently to resolve the dispute.
7.7. Taxes. You are solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from GraphCall’s provision of the GraphCall Applications and/or Services hereunder, except any taxes assessed upon GraphCall’s net income. If GraphCall is required to directly pay Taxes related to your use of the GraphCall Applications or receipt of any Services hereunder, you agree to promptly reimburse GraphCall for any amounts paid by GraphCall.
8. PROPRIETARY RIGHTS
8.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, GraphCall reserve all rights, title and interest in and to the GraphCall Applications, and the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. Neither you nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of GraphCall, if any, appearing on any GraphCall Application or Documentation.
8.2. Customer Materials. As between GraphCall and you, you exclusively own all right, title and interest in and to all Customer Materials if the nodes and relationships are recorded as private, or if an autopilot is recorded as private, or if an autopilot is recorded as public restricted by URL access, Customer Materials are deemed Confidential Information under this Agreement. If the nodes relationships and documents are recorded as public, Customer Materials are deemed accessible pursuant to section to content user Section 3 above. If the autopilots are recorded in public mode unrestricted, they are deemed accessible pursuant to content user Section 3 above.
8.3. Suggestions. GraphCall shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the GraphCall Applications and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by you and your Users relating to the GraphCall Applications or the Services. You acknowledge and agree that any GraphCall Application or Services incorporating such suggestions, enhancement requests, recommendations or other feedbackshall be the sole and exclusive property of GraphCall and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon GraphCall pursuant to Section 9 below.
6.4. Deliverables. As between GraphCall and you, you exclusively own all right, title and interest in and to any Deliverables that constitute a Customer Material or a modification, translation, abridgment, adaptation or other derivative work of the Customer Materials, or any other Deliverable expressly identified as being owned by you in the applicable SOW (“Customer Deliverables”), and GraphCall hereby assigns and transfers to you any right, title or interest that GraphCall may acquire in or to any Customer Deliverables upon receipt of payment in full from you. Except for Customer Deliverables, GraphCall shall own all rights, title and interest in and to all other Deliverables, and related intellectual property rights. Subject to terms and conditions of this Agreement, and during the Subscription Term, GraphCall hereby grants you a limited, non-exclusive, non-transferable (except in connection with an assignment under Section 12.7 of the Agreement) and terminable license to use the Deliverables solely in connection with your authorized use of the Subscription Service, GraphCall Applications or Third Party Applications. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by GraphCall to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to you, on the same terms as the Deliverables; and (ii) neither the term “Deliverables” or “Customer Deliverable” shall include the Tools.
9.1. “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, (including pricing and other terms set forth in all Order Forms hereunder), business information, specifications, research, software (including but not limited to, the GraphCall Applications, flow of screens, and Documentation), trade secrets, designs, drawings, flow charts, data, computer programs, marketing plans, budget figures, and other financial and business information, or any such information of clients, parents, affiliates, subsidiaries or agents of a Party.
9.2. Treatment of Confidential Information. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission.
9.3. Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.
9.4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
10. WARRANTIES; DISCLAIMERS
10.1. Warranties. Each party represents and warrants that it has the power to enter into this Agreement. GraphCall represents and warrants to you that (i) the GraphCall Applications will perform in all material respects with the Documentation, (ii) Ancillary Services provided to Customer under this Agreement will be performed in a competent and workmanlike manner in conformance with generally accepted industry standards. GraphCall represents and warrants that the GraphCall Applications, and Customer represents and warrants that the Customer Materials, will be free of any virus, Trojan Horse, cancelbot, timebombs or other devices developed to disable or to erase, damage or corrupt software, hardware or data.
10.2. General Disclaimers. THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 8 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY THE PARTIES AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, GRAPHCALL MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT.
10.3 GraphCall Application Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, GRAPHCALL DOES NOT WARRANT THAT THE GRAPHCALL APPLICATION IS ERROR FREE, THAT YOU WILL BE ABLE TO ACCESS OR USE THE GRAPHCALL APPLICATION WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE GRAPHCALL SITE AND APPLICATION ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION.
11.1. Indemnification by GraphCall. GraphCall, at its expense, will defend and pay any settlement amounts or losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that your use of the GraphCall Application or Subscription Services in accordance with the terms and conditions of this Agreement infringes a United States copyright or patent issued as of the Effective Date of any third party. The foregoing obligation shall not apply with respect to a claim of infringement if such claim arises out of (i) your use of infringing Customer Materials (ii) use of the GraphCall Application or Subscription Services in combination with any software, hardware, network or system not supplied by GraphCall where the alleged infringement relates to such combination, (iii) any modification or alteration of the Subscription Services or GraphCall Application (other than by GraphCall), (iv) if you continue the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (v) your violation of applicable law. If any claim which GraphCall is obligated to defend has occurred, or in GraphCall’s determination is likely to occur, GraphCall may, in its sole discretion and at its option and expense (a) obtain for you the right to use the allegedly infringing item, (b) substitute a functionality equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate the Agreement and refund to you fees paid by you to GraphCall for the infringing items in an amount pro rated to reflect the period of time between the date Customer was unable to use the GraphCall Application or Subscription Service due to such claim and the remaining days in the current Term.
11.2. Indemnification by Customer. You, at your expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that GraphCall’s use of the Customer Materials in accordance with the terms and conditions of this Agreement infringes any trade secret, copyright, or patent issued as of the Effective Date of any third party, or (ii) arising from occurrence of the conditions set forth in Section 11.1(i)-(v) above.
11.3. Conditions. The parties’ obligations under this Section are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section are subject to the limitations and exclusions set forth in Section 10 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.
12. LIMITATION OF LIABILITY
10.1. Limitation of Liability.IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT TERMS).
10.2. Exclusion of Consequential and Related Damages.IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. TERM AND TERMINATION
13.1. Term of Subscriptions. Subscriptions to use the GraphCall Applications and/or access the Subscription Services begin on the start date specified in the relevant Order Form and continue for the period set forth therein (each a “Subscription Term”).
13.2. Termination for Upgrade. During a Subscription Term, if you wish to upgrade your subscription to a different GraphCall offering of equal or greater value, you may submit an Order Form hereunder for such new subscription for the length of time remaining on the original subscription, terminate the original subscription, and receive a credit equal to the pro-rata amount of any prepaid fees on the remaining original subscription to be applied to any additional subscription fees related to the upgrade, if any.
13.3. Termination for Cause. This Agreement may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder.
13.4. Effect of Termination. Except as otherwise set forth herein, expiration or termination of this Agreement shall have the following effects: (i) all subscriptions granted under this Agreement shall terminate immediately, and (ii) upon request by you made within 30 days after the effective date of termination, GraphCall shall make available to you for download your Customer Materials in the current format in which it is stored in the GraphCall Application. After such 30-day period, GraphCall shall have no obligation to maintain or provide any Customer Materials and may thereafter unless legally prohibited, delete all Customer Materials in its systems or otherwise in its possession or under its control. In the event of termination of a project set forth in an applicable SOW (other than termination as a result of GraphCall’s breach), you agree to pay GraphCall all fees due, and unreimbursed out-of-pocket expenses incurred by GraphCall up to the date of termination or expiration of such SOW.
13.5. Survival. Except to the extent expressly provided to the contrary herein, Sections 8 through 14 shall survive the termination of this Agreement.
14.1. Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents. This is a non-exclusive arrangement.
14.2. Entire Understanding. This Agreement (including any ordering documents incorporated by reference herein) states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or in any other ordering documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
14.3. Modification and Waiver. Except as otherwise set forth in Section 13.4, no modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by both parties. No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement. A determination that any provision of this Agreement is invalid or unenforceable shall not affect the other provisions of this Agreement.
14.4. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the United States and the state of Florida excluding its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The state and federal courts located in Miami, Miami-Dade County, Florida will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement if your address is located outside of Brazil. If you are located in Brazil, the "foro" of the state of Rio de Janeiro Brazil will have exclusive jurisdiction. Each party hereby irrevocably consents to the jurisdictions of such courts, based on your location.
14.5. Publicity. GraphCall may reference your name and the nature of the Services provided hereunder in GraphCall business development and marketing efforts, including without limitation its web site. You agree to allow GraphCall to issue a press release upon execution of this Agreement provided you have approved such press release in writing and in advance, such approval not to be unreasonably withheld, and to use your name in any listing of customers of GraphCall. Further, upon your prior approval, you grant GraphCall a limited, royalty-free, revocable, worldwide license to post a mutually agreed-upon copy of a presentation developed by use of the GraphCall Applications on GraphCall’s website for demonstration and other marketing purposes.
14.6. Assignment.Either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, GraphCall shall refund to you any prepaid fees covering the remainder of the Subscription Terms after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third party beneficiaries to this Agreement.
14.7. Notices. Except for email notifications as permitted hereunder, all other legal notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatories of this Agreement and the relevant Order Form, with a copy to its General Counsel, or to such other address or individual as the parties may specify from time to time by written notice to the other party. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
14.8. Export. You agree, in connection with your use of the GraphCall Applications and any Services, to comply with all applicable export and re-export control laws and regulations.
14.9. Staffing. GraphCall shall be responsible for staffing decisions with respect to its personnel and the provision of any services under this Agreement, and shall have the right to remove or replace any of its personnel assigned to perform any Services under this Agreement.
14.10. Force Majeure. Except for performance of a payment obligation, neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate the Agreement for convenience upon written notice to the other party.