Last updated: 2023-06-22
GRAPHITE NOTE TERMS OF SERVICE
Definitions and Construction
1.1. Definitions. The terms “You”, “Your” or “Company” refer to whomever is entering into this Agreement and the company they are representing. Graphite Note shall be referred to as “Graphite Note” throughout the Agreement, each is a “party” to this Agreement and together are referred to as the “Parties.”
1.2. For the purposes of this Agreement, the following initially highlighted words have the following meanings:
“Administrative User” means any individual who is an employee or independent contractor of Customer, its Affiliates, or its or their Customer Service Providers, and who is authorised by Customer to use the administrative features and functions of the Graphite Note Platform to administer access to and use of Customer Applications.
“Affiliate” means any person, partnership, joint venture, company or other form of venture or enterprise, domestic or foreign, including subsidiaries, which directly or indirectly Control, are Controlled by, or are under common Control with a party. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the entity in respect of which the determination is being made, through the ownership of more than fifty percent (50%) of its voting or equity securities, contract, voting trust or otherwise.
“Customer Application” means an application or web-based service developed or used by Customer or its Affiliates (including its APIs), and which connects with or provides Customer Data to the Graphite Note Platform to program a machine learning model to uncover new data patterns and provide advanced data analytics. Customer Applications are provided by Customer or its Affiliates, and not by Graphite Note;
“Customer Application” does not include the Graphite Note Platform.
“Customer Data” means any data that Customer or its Users input into, or allow to be integrated with, the Graphite Note Platform for Processing as part of the Services, including any Personal Data forming part of such data.
“Customer Service Provider” means a third party, to the extent the third party is providing services to Customer.
“Documentation” means the software, user and administrator documents published by Graphite Note, regarding use of the Graphite Note Platform, including additional, updated or revised documentation, if any.
“End User” means any individual who has been authorised by Customer to use the end user features and functionality of the Services.
“Free Trial” means use of the Subscription Services for trial purposes pursuant to a Sales Order that specifies that Customer’s use is for a Free Trial.
“Graphite Note Platform” means the computer software applications, tools, application programming interfaces (APIs), connectors, programs, networks and equipment that Graphite Note uses to make the Subscription Services available to its customers.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Professional Services” means the professional services (typically consulting and advice concerning optimum utilisation of the Subscription Services), to be performed by Graphite Note that are specified in the applicable Sales Order. Professional Services are not required for use of the Subscription Services.
“Sales Order” means any mutually agreed, written sales order, executed on behalf of Graphite Note and Customer, including its exhibits and addenda, describing the Subscription Services, Support Program, Professional Services (if applicable), fees, and any special terms for using the Services that Customer has ordered. Each Sales Order becomes effective when executed by both Graphite Note and Customer, and is made part of this Agreement as described in Section 1.2.
“Services” means the Subscription Services and the Professional Services.
“Subscription Services” means the Graphite Note Platform service offerings to which Customer subscribes, together with any applicable support, each as specified in the applicable Sales Order, and the Documentation.
“Subscription Term” has the meaning ascribed to it in the Sales Order
“User” means any Administrative User or End User.
1.2. Construction. This Agreement applies to the provision of all Services. The Parties will enter into one or more Sales Orders that contain additional terms and conditions applicable to the provision of certain Services. Upon execution by the Parties, each Sales Order will be incorporated into this Agreement.
Provision and Use of Services; Operational considerations
2.1. Provision of Subscription Services. During the Subscription Term, Customer may access and use the Graphite Note Platform in accordance with this Agreement. Graphite Note will make the Graphite Note Platform available to Customer and provide any necessary support.
2.2. Customer’s Account. Customer will designate one or more of its employees to be the point of contact with Graphite Note for the management and support of the Subscription Services, and who will be responsible for establishing and managing Customer’s use of the Subscription Services (“Account”), including the creation of authentication credentials to access Customer’s Account. Customer is solely responsible for maintaining the status of its User base. Customer will safeguard all Administrative User authentication credentials in its possession or under its control. Customer is responsible for all activities that occur under the Account.
2.3. Customer’s General Responsibilities. Customer and its Users are solely responsible for obtaining and maintaining their Internet access to the Subscription Services. Customer is solely responsible for the accuracy, quality and integrity of the Customer Data that Customer or its Users input into, or allow to be integrated with, the Graphite Note Platform. Customer must comply, and will ensure that its Administrative Users comply, with the terms of the Agreement. Customer is responsible for acts and omissions of its Administrative Users relating to this Agreement as though they were Customer’s own.
2.4. Customer Application. Customer is solely responsible for the development, implementation, operation, support, maintenance and security of each Customer Application.
2.5. Connection to Customer Applications. The Graphite Note Platform includes functionality that enables Customer, at Customer’s option, to connect with certain Customer Applications, via public facing APIs provided and controlled by the Customer Application. Any information transmitted to or accessed by the Graphite Note Platform from Customer Application is considered Customer Data under this Agreement and, to the extent within Graphite Note’s possession or under Graphite Note’s control, is subject to the data protection provisions of Section 7. If a Customer Application modifies its APIs or equivalents so that they no longer interoperate with the Graphite Note’s Platform, or imposes requirements on interoperability that are unreasonable for Graphite Note, and if after applying reasonable efforts Graphite Note is unable to overcome such modifications or requirements then, upon reasonable notice to Customer, Graphite Note may cease or suspend its provision of interoperability between the Graphite Note Platform and the affected Customer Application, without liability to Graphite Note. Except for Graphite Note’s obligations to protect information obtained by the Graphite Note Platform from a Customer Application, Graphite Note has no responsibility for the acquisition, development, implementation, operation, support, maintenance or security of any Customer Application.
License Grants and proprietary Rights
3.1. License by Graphite Note. Subject to the terms and conditions of this Agreement, Graphite Note hereby grants to Customer a non-exclusive, non-transferable (except in accordance with Section 13.11 – Assignment), royalty-free, worldwide license, without right to sub-license, for the Subscription Term, to (a) access and use, and to permit its Users to access and use, the Graphite Note Platform, in accordance with the Documentation, and (b) reproduce, modify, and distribute and display the Documentation, in each case solely for Customer’s operations in its ordinary course of business. Graphite Note reserves all other rights not expressly granted in this Agreement.
3.2. License by Customer. Customer hereby grants to Graphite Note a non-exclusive, non-transferable (except in accordance with Section 13.11 – Assignment), royalty-free license, without right to sub-license (except to its sub-processors, as required for the provision of the Subscription Services), to use the Customer Data, solely as necessary to perform the Services and as otherwise may be agreed in writing by Customer. Customer reserves all other rights not expressly granted in this Agreement.
3.3. Ownership of Intellectual Property Rights.
3.3.1. Ownership and Use of Customer Data. Customer retains all of its rights, title and interest and Intellectual Property Rights in and to the Customer Data and Customer Confidential Information. No ownership interest in the Customer Data or Customer Confidential Information is transferred or conveyed to Graphite Note by virtue of this Agreement. Graphite Note will use Customer Data and Customer Confidential Information only for purposes of providing the Services, unless otherwise authorised in writing by Customer.
3.3.2. Graphite Note’s Intellectual Property and Ownership Rights. As between Customer and Graphite Note, Graphite Note retains and owns all right, title and interest and all Intellectual Property Rights in and to the Subscription Services, Graphite Note’s Confidential Information, and all enhancements or improvements to, or derivative works of any of the foregoing created or developed by or on behalf of Graphite Note (collectively, “Graphite Note Intellectual Property”). Nothing in this Agreement transfers or conveys to Customer any ownership interest in or to the Graphite Note Intellectual Property.
3.4. Restrictions. Customer will not: (i) except to the extent, if any, permitted by applicable law or required by Graphite Note, reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from any of the Graphite Note Platform; (ii) reproduce, modify, or prepare derivative works of the Graphite Note Platform; or (iii) share, rent or lease the Subscription Services, or use the Subscription Services to operate any timesharing, service bureau or similar business or to provide the Graphite Note Platform as a standalone offering.
4.1. Subscription Plans. Customer’s subscription plan for the Subscription Services is specified in the applicable Sales Order. Customer may not reduce Customer’s commitment under the subscription plan specified in the Sales Order during the Subscription Term.
4.2. Payment of Services Fees. Customer will pay Graphite Note the fees for the Services as specified in the applicable Sales Order. Graphite Note invoices in advance for use of the Services. Unless specified otherwise in the applicable Sales Order, Customer will make all payments within thirty (30) days of receipt of Graphite Note’s invoice. Unless otherwise specified in the applicable Sales Order, all Fees are stated and payable in Euros.
4.3. Sales Taxes, Etc. Customer will be responsible for any applicable sales, value-added, use and similar taxes, together with all customs and import duties, and similar levies and impositions (“Taxes”) payable with respect to its acquisition of Services, or otherwise arising out of or in connection with this Agreement, other than taxes based upon Graphite Note’s personal property ownership or net income. Unless expressly specified otherwise in any Sales Order, all fees, rates and estimates exclude Taxes. If Customer has tax-exempt status, Customer will provide written evidence of such status with its purchase orders or upon request by Graphite Note.
4.4. Withholding. If Customer is required to withhold taxes imposed upon Graphite Note for any payment under this Agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which any Subscription Services are delivered or obtained, then such payments will be made by Customer on behalf of Graphite Note by deducting them from the payment then due Graphite Note and remitting such taxes to the proper authorities on a timely basis, and the payments provided for under this Agreement will be adjusted upwards appropriately so that Graphite Note actually receives the full amount of the fees set forth in the applicable Sales Order. Customer will provide Graphite Note with official documentation or tax receipts on such withholdings supporting such taxes and such payments as may be required by Graphite Note for its tax records as soon as reasonably possible following payment to the applicable tax authority, and in any event no later than when required by applicable law.
5.1. Warranties. Graphite Note warrants to Customer that:
5.1.1. Performance Warranty. During the Subscription Term, the Graphite Note Platform, in the form provided by Graphite Note, will conform in all material respects to its applicable specifications set forth in the Documentation.
5.1.2. Viruses. Graphite Note will use commercially reasonable efforts, using applicable current industry practices, to ensure that the Graphite Note Platform, in the form provided by Graphite Note to Customer under this Agreement, contains no computer virus, Trojan horse, worm or other similar malicious code.
5.1.3. Infringement. Graphite Note’s provision to Customer of the Subscription Services does not infringe any third party patent existing under the laws of any member state of the European Economic Area, the United Kingdom, the United States, Canada, Australia, New Zealand, Singapore, Brazil, South Korea, India or Japan, or infringe any third party copyright, trademark or service mark, or result from misappropriation by Graphite Note of any third party’s trade secrets (collectively, an “Graphite Note Infringement”).
5.1.4. Compliance with Law. The Services, in the form provided or made available by Graphite Note, will comply with all laws applicable to Graphite Note and its provision of Services.
5.2. Performance Remedy. If the Graphite Note Platform fails to conform to the warranty set forth in Section 5.1.1 and Customer provides written notice of the non-conformance to Graphite Note within the applicable Subscription Term then, as Customer’s exclusive remedy and Graphite Note’s sole obligation: Graphite Note will either repair or, at its option, replace the non-conforming Graphite Note Platform or, if Graphite Note is unable to correct the non-conformance within 30 days of receipt of such written notice from Customer, Customer may terminate the applicable Subscription Services, and Graphite Note will refund to Customer a pro-rata amount of any Subscription Services fees prepaid to Graphite Note and applicable to the unutilised portion of the Subscription Term for the terminated Subscription Services.
5.3. Infringement Remedy. Customer’s sole and exclusive remedy for any non-conformance with the warranty in Section 5.1.3 above will be Customer’s defense and indemnification rights under Section 9.1 below, and Customer’s termination rights under Section 8 below.
5.4. Bugs and Abatement; Scope. Without limiting the express warranties in this Section 5, Graphite Note does not warrant that the Graphite Note Platform or Services are completely free from all bugs, errors, or omissions, or will ensure complete security. The warranties in Sections 5.1.1 do not apply to any Free Trial. The warranties in this Agreement are for the sole benefit of the Customer and may not be extended to any other person or entity.
5.5. Disclaimer Of Implied Warranties. Neither party makes any representation or warranty in connection with the Services, except as expressly warranted in this Agreement or the Additional Terms of Service. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY WARRANTED IN THIS SECTION 5, EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OR IMPLIED OBLIGATION TO INDEMNIFY FOR INFRINGEMENT, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, AND ANY STATUTORY REMEDY.
6.1. Restrictions on use and Disclosure. Neither Graphite Note nor Customer will disclose to any third party any information provided by the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential (such information, “Confidential Information”), and will make no use of such Confidential Information, except under and in accordance with this Agreement. The receiving party will take reasonable precautions (using no less than a reasonable standard of care) to protect the disclosing party’s Confidential Information from unauthorised access or use. Each party may disclose Confidential Information to its Affiliates and service providers, and its Affiliates and service providers may use such information, in each case solely for purposes of this Agreement. Each party will be liable for any breach of its obligations under this Section 6 that is caused by an act, error, or omission of any such Affiliate or service provider. Confidential Information includes information disclosed by the disclosing party with permission from a third party, and combinations of or with publicly known information where the nature of the combination is not publicly known. Graphite Note’s Confidential Information includes information regarding Graphite Note Platform, Graphite Note’s processes, methods, techniques, and know-how relating to artificial intelligence and machine learning, Documentation, roadmaps, pricing, marketing and business plans, financial information, information security information, and Personal Data of Graphite Note personnel. Customer’s Confidential Information includes information input into, or integrated with, the Graphite Note Platform for Processing as part of the Services, its proprietary workflows and processes, systems architecture, marketing and business plans, financial information, information security information, information pertaining to Customer’s other suppliers, and Personal Data of Customer’s personnel. This Section 6 does not apply to Graphite Note’s obligations regarding use and protection of Customer Data; those obligations are specified in Section 7 (Data Protection).
6.2. Exclusions. Except with respect to Personal Data, Confidential Information does not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party; or (iv) has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
6.3. Disclosure Required By Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information.
6.4. Independent Development. The terms of confidentiality under this Agreement will not limit either party’s right to independently develop or acquire products, software or services without use of or reference to the other party’s Confidential Information.
7.1. Regulatory Issues.
7.1.1. Personal Data – Compliance with Applicable Law. Customer may select the Personal Data it elects to input into and Process using the Graphite Note Platform in its sole discretion; Graphite Note has no control over the nature, scope, or origin of, or the means by which Customer acquires, Personal Data Processed by the Subscription Services. Subject to the Customer Legal Basis Assurance (defined in Section 7.1.3 below), Graphite Note will comply, and will ensure that its personnel comply, with the requirements of EU privacy laws and regulations governing Customer Personal Data in Graphite Note’s possession or under its control and applicable to Graphite Note’s provision of Services. Customer is solely responsible for ensuring that it complies with any legal, regulatory or similar restrictions applicable to the types of data Customer elects to Process with the Graphite Note Platform.
7.1.2. ePHI. If Customer is subject to US healthcare data protection laws (e.g., HIPAA), Customer may not use the Graphite Note Platform to Process “electronic Protected Health Information” unless the applicable Sales Order specifies that it intends to do so.
7.1.3. Data Consents. Customer is solely responsible for obtaining, and represents and covenants that it has obtained or will obtain prior to Processing by Graphite Note, all necessary consents, licenses and approvals for the Processing, or otherwise has a valid legal basis under EU Data Protection Laws for the Processing of, any Personal Data provided by Customer or its Users as part of the Services (the “Customer Legal Basis Assurance”).
7.1.4. Regulator Inquiries and Court Orders. If any regulator, or any subpoena, warrant or other court or administrative order, requires Graphite Note to disclose or provide Customer Data to a regulator or to any third party, or to respond to inquiries concerning the Processing of Customer Data, Graphite Note will promptly notify Customer, unless prohibited by applicable law. Following such notification, Graphite Note will reasonably cooperate with Customer in its response, except to the extent otherwise required by applicable law.
7.2. Instructions. Graphite Note will Process Customer Data only as necessary to provide the Services, and in accordance with Customer’s instructions. This Agreement, and Customer’s use of the Graphite Note Platform’s features and functionality, are Customer’s instructions to Graphite Note in relation to the Processing of Customer Data.
7.3. Customer data input or import responsibilities. Customer shall not import or allow others to import into the Solution any:
a) trojan horse, worm, virus or other code which does not serve a legitimate purpose, and which is designed to be destructive, disabling or harmful or enables unauthorised access to, or disclosure or corruption of information or software;
b) data regulated by the Payment Card Industry Data Security Standards, or other financial account numbers or credentials;
c) information regulated by the U.S. Health Insurance Portability and Accountability Act;
d) social security numbers (or local equivalent), driver’s license numbers or other government ID numbers;
e) sensitive personal data (including special categories of personal data defined under Article 9 and criminal offence data defined under Article 10 of the E.U. and U.K. General Data Protection Regulation);
f) personal data of individuals under 16 years old;
g) information subject to regulation or protection under the U.S. Gramm-Leach-Bliley Act, U.S. Children’s Online Privacy Protection Act or similar foreign or domestic laws; or
h) content that violates a third party’s intellectual property rights.
i) Personal data listed in (b)-(g) that has been anonymised in accordance with the applicable regulatory regime may be imported.
7.4. Information Security. Graphite Note will implement and maintain commercially reasonable technical and organisational security measures designed to meet the following objectives: (i) ensure the security and confidentiality of Customer Data in the custody and under the control of Graphite Note; (ii) protect against any anticipated threats or hazards to the security or integrity of such Customer Data; (iii) protect against unauthorised access to or use of such Customer Data; and (iv) ensure that Graphite Note’s return or disposal of such Customer Data is performed in a manner consistent with Graphite Note’s obligations under items (i)-(iii) above.
7.5. Data Export, Retention, Deletion and Return. Customer may export Customer Data from the Graphite Note Platform at any time during the Subscription Term, using the Graphite Note Platform’s then existing features and functionality, at no additional charge. Customer is solely responsible for its data retention obligations with respect to Customer Data. Graphite Note is not obligated to delete copies of Customer Data retained in automated backup copies generated by Graphite Note, which Graphite Note will retain for up to 18 months from their creation. Such backup copies will remain subject to this Agreement until the copy, or the Customer Data in the copy, is destroyed. Graphite Note’s obligations to return Customer Data upon termination of a Subscription Term may be fulfilled by permitting Customer to export Customer Data as specified above.
7.6. Sub-Processors. Customer consents to Graphite Note’s use of sub-processors to provide aspects of the Subscription Services, and to Graphite Note’s disclosure and provision of Customer Data to those sub-processors. Graphite Note will require its sub-processors to comply with terms that are substantially no less protective of Customer Data than those imposed on Graphite Note in this Agreement (to the extent applicable to the services provided by the sub-processor).
7.7. Access by Graphite Note Personnel. Graphite Note will ensure that its personnel access Personal Data only when authorised by Graphite Note, and in accordance with Graphite Note’s applicable controls. Access is typically required only in connection with Graphite Note’s provision of the Services. Graphite Note will ensure that its personnel are subject to obligations of confidentiality with respect to Customer Data.
7.8. User Requests. If any User requests Graphite Note to provide them with information relating to Processing of their Personal Data, or to make changes to their Personal Data, then Graphite Note will promptly notify Customer of the request, unless otherwise required by applicable law. Customer may make changes to User data using the features and functionality of the Graphite Note Platform. Graphite Note will not make changes to User data except as agreed in writing with Customer.
7.9. Breach Notification. Graphite Note will notify Customer of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Customer Data in Graphite Note’s possession or under its control (a “Security Breach”) within 2 working days of Graphite Note’s confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each party will reasonably cooperate with the other with respect to the investigation and resolution of any Security Breach including, in the case of Graphite Note, prompt provision of the following, to the extent then known to Graphite Note: (i) the possible cause and consequences of the Security Breach; (ii) the categories of Personal Data involved; (iii) a summary of the possible consequences for the relevant Users; (iv) a summary of the unauthorised recipients of the Customer Data; and (v) the measures taken by Graphite Note to mitigate any damage. Upon confirmation of any vulnerability or breach of Graphite Note’s security affecting Customer Data in Graphite Note’s custody and control, Graphite Note will modify its processes and security program as necessary to mitigate the effects of the vulnerability or breach upon such Customer Data. Insofar as the Security Breach relates to Customer, and except to the extent required otherwise by applicable law, Customer will have approval rights on notifying its Users and any third-party regulatory authority of the Security Breach. All security breach or security compromise notifications will be via the Graphite Note Platform dashboard or account center, and via email to the persons designated by Customer to receive notices in the Graphite Note Platform dashboard or account center.
7.10. Territorial Restrictions. Graphite Note will Process Customer Data within the AWS platform infrastructure located in the European Union. Graphite Note personnel may access Customer Data from any location for purposes of providing the Services (subject to the restrictions described in Section 7.7 above).
Term and Termination
8.1. General. This Agreement will commence on the Effective Date and will continue in effect until terminated in accordance with Section 8.2 or 8.3 below.
8.2. Termination On Breach. In the event of a material breach of the Agreement by either party, the non-breaching party may terminate the Agreement or any Sales Order affected by the breach by giving the breaching party written notice of the breach and the non-breaching party’s intention to terminate. If the breach has not been cured within the period ending 30 days after such notice, and if the non-breaching party provides written notice of termination to the breaching party (“Termination Notice”), then this Agreement or any such Sales Order will terminate within the time period specified in the Termination Notice. Notwithstanding the foregoing, Customer’s failure to pay any overdue fees and expenses within 30 days of Graphite Note notifying Customer of the overdue payment will constitute a material breach of this Agreement. If Customer has not cured a material breach within the applicable cure period, then Graphite Note may, on not less than 5 business days’ prior written notice to Customer, in its sole discretion, and without prejudice to its other rights following material breach and failure to cure, until such breach has been cured in full, suspend performance of some or all of Graphite Note’s obligations to provide Services under this Agreement. If Customer terminates this Agreement or any Sales Order for breach in accordance with this Section 8.2, then Graphite Note will refund to Customer a pro-rata amount of any affected Subscription Services fees prepaid to Graphite Note and applicable to the unutilised portion of the Subscription Term for terminated Subscription Services, and any affected unutilised Professional Services fees prepaid to Graphite Note.
8.3. Termination Without Cause. Either party may terminate the Agreement for any reason, without cause, by providing written notice to the other party at least 1 month in advance of the intended termination date. Either party may terminate a Free Trial at any time, for any reason, effective upon delivery of notice to that effect.
8.4. Subscription Term and Renewal. Each subscription term for Subscription Services will commence on the Subscription Start Date and will continue for the period specified in the Sales Order or, if not so specified, one year (an “Initial Term”). Upon expiration of the Initial Term the parties may renew the Subscription Services term for successive periods of at least one year each (each, a “Renewal Term”) at such rates as may be mutually agreed in writing between them. If the parties do not renew the Subscription Services term and the Customer continues to use the Subscription Services, the agreement is deemed to auto-renew for a further renewal term, until formally renewed or cancelled by the Parties. The Initial Term and each Renewal Term are individually referred to in these Terms as the “Subscription Term”.
8.5. Fulfillment of Obligations on Termination. Except as otherwise specified in this Agreement or any Additional Terms of Service, termination of the Agreement or of any Services will not entitle Customer to any refund of or relief from payment of any Services fees paid or payable under this Agreement.
8.6. Post Termination Obligations. Following any termination of the Agreement or any Sales Order, each party will, within 30 days of such termination, (i) immediately cease use of any Confidential Information of the other communicated for the purposes of this Agreement or such Sales Order, and (ii) return or destroy (and certify destruction of) all copies of any Confidential Information of the other party disclosed under the Agreement or such Sales Order within 30 days of such termination, subject to each party’s customary backup and archival processes.
8.7. Suspension – Critical Threats. If Graphite Note, acting reasonably in the circumstances then known to Graphite Note, determines that Customer’s or any of its Users’ use of the Subscription Services poses an imminent threat to (i) the security or integrity of any Customer Data or the data of any other Graphite Note customer, or (ii) the availability of the Graphite Note Platform to Customer or any other Graphite Note customer (collectively, a “Critical Threat”), then Graphite Note will immediately attempt to contact Customer to resolve the Critical Threat. If Graphite Note is unable to immediately contact Customer, or if Graphite Note contacts Customer but Customer is unable to immediately remediate the Critical Threat, then Graphite Note may suspend Customer’s and its Users’ use of the Graphite Note Platform until the Critical Threat is resolved and Graphite Note is able to restore the Subscription Services for Customer.
8.8. Survival. The provisions of Sections 1, 3.3-3.4, 4.3-4.4, 6, 7, 8.5-8.8, 9-10 and 12 of this Agreement will survive any termination or expiration of this Agreement.
9.1. Graphite Note’s Infringement Indemnification.
9.1.1. Defense and Indemnity. If any third party makes any claim against Customer that alleges a Graphite Note Infringement (defined in Section 5.1.3) then, upon notification of such claim, Graphite Note will, at its sole cost and expense, defend Customer against such claim and any related proceeding brought by such third party against Customer, and indemnify Customer from and against all damages, fines and penalties finally awarded against Customer or agreed to be paid by Customer in a written settlement approved in writing by Graphite Note, and resulting from the Graphite Note Infringement. Graphite Note’s obligations under this Section 9.1.1 are subject to Customer’s compliance with the “Indemnification Conditions” (defined below).
“Indemnification Conditions” means the following conditions with which a party must comply in order to be entitled to defence or indemnification under the Agreement by the other party: (i) the indemnified party notifies the indemnifying party in writing of any claim that might be the subject of indemnification promptly after any executive officer of the indemnified party or member of the indemnified party’s legal department first knows of the claim, provided, however, that no failure to so notify an indemnifying party will relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially prejudices defence of the claim, and except to the extent of damages incurred by the indemnifying party as a result of the delay; (ii) the indemnifying party is given primary control over the defence and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defence at its sole cost and expense); (iii) the indemnified party makes no admission of liability (except as required by applicable law) nor enters into any settlement without the indemnifying party’s prior written agreement (not to be unreasonably withheld); (iv) the indemnified party provides such assistance in defence of the proceeding as the indemnifying party may reasonably request, at the indemnifying party’s reasonable expense; and (v) the indemnified party uses all commercially reasonable efforts to mitigate its losses.
9.1.2. Graphite Note’s Mitigation Rights. If any Subscription Services become (or in Graphite Note’s opinion are likely to become) the subject of any infringement or misappropriation claim, Graphite Note may, and if Customer’s use of the Subscription Services is enjoined, Graphite Note must, at its sole expense, either: (i) procure for Customer the right to continue using the relevant Subscription Services; (ii) replace or modify the relevant Subscription Services in a functionally equivalent manner so that they no longer infringe; or (iii) terminate the applicable Sales Order or Customer’s rights to use affected Subscription Services, and refund to Customer a pro-rata amount of any subscription fees prepaid to Graphite Note and applicable to the unutilised portion of the Subscription Term for the terminated Subscription Services.
9.1.3. Exclusions. Notwithstanding the foregoing, Graphite Note will have no obligation with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Subscription Services not in accordance with their applicable license rights, (ii) the combination of the Subscription Services with other products, equipment, software, services or data not supplied by Graphite Note where the infringement would not have occurred but for such combination, or (iii) any Customer Data.
9.2. Customer’s Consent Indemnification.
9.2.1. Defense and Indemnity. If any third party makes any claim against Graphite Note that alleges a non-conformance with the Customer Legal Basis Assurance (defined in Section 7.1.4) then, upon notification of such claim, Customer will, at its sole cost and expense, defend Graphite Note against such claim and any related proceeding or investigation brought by such third party against Graphite Note, and Customer will indemnify Graphite Note from and against all damages, fines and penalties finally awarded against Graphite Note or agreed to be paid by Graphite Note in a written settlement approved in writing by Customer, and resulting from the non-conformance. Customer’s obligations under this Section 9.2.1 are subject to Graphite Note’s compliance with the Indemnification Conditions.
9.2.2. Mitigation Rights. If Customer Data is, or in Customer’s reasonable opinion is likely to become, the subject of a claim of non-conformance with the Customer Legal Basis Assurance, then Customer will have the right to: (i) procure the rights necessary for Customer and Graphite Note to continue to Process the affected Customer Data; (ii) modify the Customer Data so that there is no longer a non-conformance; or (iii) delete or otherwise remove the non-conforming Customer Data from the Graphite Note Platform.
9.2.3. Exclusions. Notwithstanding the foregoing, Customer will have no obligation under this Section 9.2 or otherwise with respect to any claim of non-conformance with the Customer Legal Basis Assurance to the extent based upon Graphite Note’s Processing of the affected Customer Data other than in accordance with this Agreement.
Limitations and Exclusions of Liability
10.1. Exclusion of Certain Claims. SUBJECT TO SECTION 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR ANY RELATED AGREEMENT, OR ANY SOFTWARE, PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THIS AGREEMENT, ANY RELATED AGREEMENT OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
10.2. Limitation of Liability. Subject to Section 10.3, neither party’s maximum aggregate liability arising out of this Agreement or any related agreement will in any event exceed the fees paid to Graphite Note under the Sales Order giving rise to the claim during the 12 month period immediately preceding the aggrieved party’s first assertion of any claim against the other, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise.
10.3. Exceptions. Sections 10.1 and 10.2 do not apply to either party’s (i) willful misconduct or gross negligence, (ii) infringement or misappropriation of any of the other’s Intellectual Property Rights, or (iii) liability or loss which may not be limited by applicable law. Any amounts payable by an indemnified party to a third party pursuant to a judgment or to a settlement agreement approved in writing by an indemnifying party, liability for which falls within the indemnifying party’s indemnification obligations under this Agreement, and all fees payable by Customer under this Agreement, will be deemed direct damages for purposes of this Section 10. Section 10.2 does not apply to (i) each party’s defence and indemnification obligations, (ii) Customer’s obligations to pay fees and expenses when due and payable under this Agreement, nor (iii) either party’s obligations under Section 6 (Confidential Information) or Section 7 (Data Protection), provided, however, that except to the extent of willful misconduct or gross negligence of Graphite Note, Graphite Note’s maximum aggregate liability under Section 7 will not exceed the fees paid by Customer to Graphite Note under the affected Sales Order in the 12 month period immediately preceding Customer’s first assertion of its claim.
10.4. Free Trial. With respect to any Free Trial, Graphite Note’s aggregate liability will in no event exceed one hundred Euros, regardless of any theory of liability, and notwithstanding any provision of this Agreement to the contrary, including Sections 10.1-10.3.
10.5. General. Each party agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such party, or fail of their essential purpose and that without these limitations the fees for the Services would be significantly higher. Neither party may commence any action or proceeding under this Agreement more than two years after the occurrence of the applicable cause of action.
11.1. Format. All notices required to be given under this Agreement shall be in writing and delivered by hand, email, first class prepaid mail or recorded delivery mail.
11.2. Graphite Note. Notices for Graphite Note shall be sent to email@example.com or Graphite Note Ltd, 4 Loreto Avenue, Loreto Road, Muckross, Killarney, Co. Kerry, V93T9C6, Ireland, Attn: Legal.
11.3. Customer. Notices for Customer shall be sent to the email address of the user who created this account.
11.4. Time. Notice will be deemed given:
a) when received, if delivered by hand or email; or
b) the next business day after it is sent, if sent by first class prepaid mail or recorded delivery;
c) five business days following postage if sent internationally.
12.1. Affiliates. This Agreement set forth the general terms and conditions under which Graphite Note will provide Services to Customer and its Affiliates. Sales Orders may be entered into under this Agreement by either the entity designated above as “Customer” or any of Customer’s Affiliates. The entity that executes a Sales Order in the position of services recipient will be considered the “Customer” for all purposes of the Sales Order; and the Sales Order will be considered a two-party agreement between Graphite Note and such “Customer” under this Agreement.
12.2. Publicity; References. Unless otherwise specified in the applicable Sales Order, Graphite Note may refer to Customer as one of Graphite Note’s customers and use Customer’s logo as part of such reference, provided that Graphite Note complies with any trademark usage requirements notified to it by Customer. With Customer’s prior written approval, including if so specified in the applicable Sales Order, (i) Graphite Note may either (a) issue a press release announcing the relationship between Graphite Note and Customer, or (b) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed; and (ii) Customer will be a reference account for Graphite Note, provided, however, that Graphite Note will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls or site visits.
12.3. Compliance With Laws. Each party will comply with all laws and regulations applicable to it, including applicable export control laws. Neither party will have any liability to the other for any non-performance of their obligations under this Agreement to the extent that the non-performance is mandated by applicable law. Each party represents and warrants to the other that neither it nor its Affiliates, nor any of its or their users, officers or directors, are persons, entities or organisations with whom the other party is prohibited from dealing (including provision of software, products or services) by virtue of any applicable law, regulation, or executive order, including applicable export control laws, and names appearing on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List.
12.4. Equitable Relief. Each of Customer and Graphite Note acknowledges that damages will be an inadequate remedy if the other violates the terms of this Agreement pertaining to protection of a party’s Intellectual Property Rights, Confidential Information or Personal Data. Accordingly, each of them will have the right, in addition to any other rights each of them may have, to seek in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of the obligations in this Agreement.
12.5. Force Majeure. If the performance of this Agreement is adversely restricted or if either party is unable to conform to any warranty or obligation by reason of any Force Majeure Event then, except with respect to obligations to pay any fees or expenses, the party affected, upon giving prompt written notice to the other party, will be excused from such performance on a day-to-day basis to the extent of such restriction (and the other party will likewise be excused from performance of its obligations on a day-to-day basis to the extent such party’s obligations relate to the performance so restricted); provided, however, that the party so affected will use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties will proceed whenever such causes are removed or cease. “Force Majeure Event” means any failure or delay caused by or the result of causes beyond the reasonable control of a party or its service providers that could not have been avoided or corrected through the exercise of reasonable diligence, including natural catastrophe, internet access or related problems beyond the demarcation point of the party’s or its applicable infrastructure provider’s facilities, state-sponsored malware or state-sponsored cyber-attacks, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, or other similar occurrence. If a party fails to perform its obligations as a result of such restriction for a period of more than 30 days, then the other party may terminate the affected Services without liability.
12.6. Service Enhancement Analysis. Graphite Note may use Customer’s and its Users’ Subscription Services usage history, statistics and telemetry (“Enhancement Data”) for Graphite Note’s internal analytical purposes related to its provision of Services, including to improve and enhance the Subscription Services and the Graphite Note Platform. Graphite Note may make information derived from its analysis of Enhancement Data publicly available on an aggregated and anonymised basis, provided that such information does not contain any Personal Data. For the sake of clarity, aggregated and anonymised data is not Confidential Information of Customer.
12.7. Captions and Headings. The captions and headings are inserted in this Agreement for convenience only and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.
12.8. Severability; Invalidity. If any provision of this Agreement is held to be invalid, such invalidity will not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.
12.9. Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver will be effective only in the specific instance and for the purpose for which given.
12.10. Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any other party.
12.11. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, which will not be unreasonably withheld, provided, however that, subject to any restrictions specified in any applicable Sales Order, either party may assign all, but not some of its rights and obligations under this Agreement to any of its Affiliates, or to any entity into or with which it is merged, or that acquires all or substantially all of its assets, upon notice to the other party, but without requiring consent. Subject to the foregoing restriction on assignment, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
12.12. Governing Law. The provisions of this Agreement shall be governed by and construed in accordance with the laws of the Republic of Ireland whose courts shall be the courts of sole jurisdiction in relation to this Agreement.
12.14. Counterparts. Sales Orders, this Agreement, and any amendments to this Agreement may be executed in one or more counterparts, which taken together will constitute a single agreement between the parties.
If you have any questions about these Graphite Note Terms of Service, please email firstname.lastname@example.org