Terms and Conditions

These Terms of Use (the “Terms”) describe the terms and conditions on which Graphite Systems, Inc. (“Graphite,” “we,” “our”, or “us”) offers you access to the Services. These Terms govern your use of the Services unless you have entered into a separate GraphiteConnect Platform Subscription Agreement or similar such agreement with us, in which case the separate agreement will govern. If you are accessing and using the Services on behalf of your organization, you represent and warrant that you have the authority to bind your organization to these Terms. THESE TERMS ARE A LEGAL AGREEMENT BETWEEN YOU AND GRAPHITE. BY USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ AND AGREE TO THESE TERMS, INCLUDING THE SECTIONS ENTITLED “DISCLAIMERS”, “LIMITATION OF LIABILITY”, AND “ARBITRATION”. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.

1. Scope of this Agreement and Changes.

These Terms and Conditions apply to your use of our Services. This Agreement can be modified at any time.

1.1 Scope. These Terms apply to the Graphite Platform service offerings to which you subscribe, together with the Support and the Documentation (the “Services”). “Graphite Platform” means our proprietary graphite®Connect computer software applications, tools, application programming interfaces (APIs), and connectors and any programs, networks and equipment that we use to make the foregoing available to you. “Documentation” means the software user and administrator manuals published by us at https://www.graphiteconnect.com/support/.  

1.2 Changes to Terms. We reserve the right to make changes to these Terms from time to time. If we make material changes, we will provide you with notice, such as by posting the updated version of these Terms through the Services or sending you an email. Unless we say otherwise in our notice, the amended Terms will be effective immediately. Your continued use of the Services after we provide you notice indicates your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.

2. Eligibility and Access.

You must meet certain requirements to use the Services.

2.1 Service Eligibility. The Services are not for use by anyone under the age of 18. Accordingly, you agree that (a) you are 18 years or older, except where applicable law requires that you must be older in order for us to lawfully provide the Services to you, in which case you must be such older age; and (b) you are not restricted by us or applicable law from using the Services.

If you are invited to the Services by one of your customers, they will not have access to your Account or any of Your Data unless you choose to share Your Data with them.

2.2 Your Account. You are responsible for establishing and managing your use of the Services (your “Account”), including the creation of credentials to access your Account. You are solely responsible for keeping your credentials confidential and all activities that occur under your Account (except to the extent resulting from our breach of these Terms). You will notify us immediately upon becoming aware of any unauthorized access to or use of your Account. If the Services were purchased by your employer for you to use, your employer has the right to control access to the Services and the right to see your Account activity. If you are invited to the Services by one of your customers, they will not have access to your Account or any of Your Data unless you choose to share Your Data with them in accordance with Section 5.2.

We may contact you via the contact details you provide to us. You agree to receive these communications from us.

2.3 Accessing the Services. You are responsible for the software, hardware, and Internet service needed to access and use the Services. If you access and use the Services on your smartphone, tablet or other mobile device, you are solely responsible for any and all data and other fees related to your use of the Services through that device.

2.4 Multi-Factor Authentication. You may provide us with your telephone number or second email address as part of your customer record or registration or via other methods. You agree that we may use your telephone number or second email address for multi-factor authentication (“MFA”) to confirm your identity and help protect the security of your Account. Part of the MFA identity verification process may involve us sending text messages containing security codes to your telephone number. You agree to receive these emails and texts from us.

2.5 Notices and Messages. You agree that we may provide notices and messages to you in the following ways: (a) within the Services; or (b) sent to the contact information you provided us (e.g., email, mobile number, physical address). You agree to keep your contact information up to date.

3. Provision and Use of the Services.

We may change, update, suspend, or discontinue the Services.

3.1 Provision of the Services. You may access and use the Services in accordance with these Terms.

You can contact us for technical support. View our Contact page for more information.

3.2 Services Availability. We may change, update, suspend, or discontinue the Services (or any portion thereof) in our discretion, with or without notice to you. We may also modify our prices upon reasonable notice to the extent allowed under local law. You agree that we have no obligation to store, maintain, retain, or provide you a copy of any of Your Data except to the extent required by applicable law and as noted in our Privacy Policy.

You are responsible for your content or ‘Your Data’. This includes ensuring its accuracy and its compliance with applicable laws and regulations.

3.3 Support. You can submit support inquiries to us at [email protected] or via our contact page at https://graphiteconnect.com/contact/. Subject to these Terms, we will use commercially reasonable efforts to provide you with technical support (“Support”) within a reasonable period of time following your submission of your support inquiry. 

There are limits on how you can use our Services. See our AUP for more information.

3.4 Your Responsibilities. In connection with your use of the Services, you agree to the following:

  • You are solely responsible for the accuracy, quality, and integrity of any data that you or parties affiliated with you upload, post, input into, store, transmit, download or retrieve from, or otherwise process through the Services, including any Personal Data (collectively, “Your Data”);
  • We are not responsible for any lost or unrecoverable aspects of Your Data; 
  • You must comply with all applicable laws and our Acceptable Use Policy set forth on our website, as may be updated from time to time, and which is hereby incorporated into these Terms by reference (the “AUP”); and
  • You are solely responsible for evaluating, confirming, and validating any data or information that you find, retrieve or process using the Services, including, without limitation, information about other entities and information submitted by other users.

3.5 Third Party Services. When using the Services, you may be offered other services, products, or promotions by third parties (“Third Party Services”). We do not review Third Party Services, and you agree that we are not responsible for, or liable to you in connection with, any Third Party Services. Additional terms, conditions, and fees may apply to Third Party Services. Third Party Services may require or permit you to upload or enter data from your Account to third parties directly or via the Internet. You assume all risk associated with any transactions that you initiate with third parties, whether through our Services or directly with such third parties.

4. License; Ownership.

We are giving you a limited right to use our Services. We and our licensors retain ownership of the Services.

4.1 License by Us. Subject to your compliance with these Terms, we hereby grant to you, and you accept from us, a limited, non-exclusive, non-transferable, non-assignable, revocable license, without the right to sublicense, during the Term to access and use the Services solely for your operations in the ordinary course of business. Except for the limited license granted to you, we and our licensors retain all right, title, and interest and intellectual property rights in and to the Services.

You must comply with our use restrictions. 

4.2 Restrictions. You will not: (i) except to the extent permitted by applicable law or required by our licensors, reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Graphite Platform; (ii) reproduce, modify, or prepare derivative works of the Graphite Platform; or (iii) share, rent, or lease the Services, or use the Services to operate any timesharing, service bureau, or similar business or to provide the Graphite Platform as a standalone offering.

5. Your Data.

You own Your Data. You give us a limited right to use Your Data to provide you the Services, in accordance with our Privacy Policy, and to enhance our Services.

5.1 License by You. As between you and us, you own Your Data, and you grant us and our Affiliated Entities a non-exclusive, transferable, sublicensable, royalty-free license to use, copy, modify, distribute, publish and process Your Data (a) to provide the Services to you; (b) in accordance with our Privacy Policy; and (c) to operate, improve, expand and modify our Services. By processing Your Data through, or otherwise making Your Data available to us in connection with, the Services, you represent and warrant that you have obtained all necessary rights and consents to (y) provide, store, transmit, or otherwise process Your Data in or through the Services and (z) grant us the licenses and rights to use Your Data in accordance with these Terms.

You choose whether you share Your Data with other users of our Services.

5.2 Sharing. When you provide Your Data to the Services, we may make settings available for you to choose whether you share Your Data with one of our users (for example, your customers who are inviting you to the Services). We will honor the choices you make about who can see Your Data.

Any personal data will be processed in accordance with our Privacy Policy.

5.3 Personal Data. You agree that we may access, store, process and use any Personal Data you provide to us in accordance with our Privacy Policy set forth at https://www.graphiteconnect.com/privacy/ (“Privacy Policy”), which is hereby incorporated by reference. “Personal Data” means any information deemed “personal data” or “personal information” (or analogous variations of such terms) under applicable privacy or data protection laws and regulations, including any information relating to an identified or identifiable natural person.

We may collect and analyze information relating to the Services. This may include Your Data. We are able to use collected and analyzed data subject to certain requirements.

5.4 Fraudulent Activity; Aggregated Usage Data. We may use Personal Data obtained from your use of the Services to detect security incidents and to prevent against fraudulent or illegal activity. You agree that we may create aggregated and de-identified data that is derived from your use of the Services (“Aggregated Usage Data”). We may use Aggregated Usage Data for our internal and business operations, including to conduct aggregate analysis of the Services’ performance and use. We may disclose the results of our analysis of Aggregated Usage Data to third parties as we reasonably consider necessary, provided that such results do not contain any of your Personal Data, identify you, or enable a third party to determine that you were the source of such information. For the sake of clarity, neither Aggregated Usage Data nor the results of its analysis are your Confidential Information.in aggregated or anonymized form.

You cannot put regulated data into the Services. Regulated data means things like protected health information, credit card numbers, etc.

5.5 Regulated Data. You acknowledge and agree that (a) the Services are not designed or intended to comply with any statutory or regulatory obligations or governmental controls or mandates applicable to you or your business (“Regulations”), other than laws and regulations with which the Services must inherently comply in the form made available to you (e.g., applicable privacy laws and regulations); and (b) you will not use the Services to upload, post, store, transmit, download, retrieve, or otherwise process any Regulated Data. “Regulated Data” means (i) a combination of any information that identifies an individual with that individual’s non-public financial, health, or other data or attribute; (ii) any “non-public personal information” as that term is defined the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1 Sec. 6809(4); (iii) Cardholder Data as that term is used in the Payment Card Industry Data Security Standards; and (iv) “protected health information” that is regulated by the Health Insurance Portability and Accountability Act as that term is defined in 45 C.F.R. 160.103. Notwithstanding the foregoing, we will notify you if the Services or any portion thereof comply with any Regulations.

We may monitor and, in some cases, remove Your Data with or without notice to you.

5.6 Monitoring. We may (but have no obligation to) monitor Your Data on the Services. We may, in our sole discretion and with or without notice to you, refuse to publicly post, remove, or refuse to remove any of Your Data, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of these Terms or our AUP.

6. Termination; Suspension.

Either of us can terminate this agreement. Upon termination, you will immediately stop using the Services and any outstanding payments will become due immediately.

6.1 Termination. Either you or we can terminate your access to the Services for convenience at any time, with or without notice. You may terminate these Terms by providing us with notice of such termination and/or requesting that we close your Account and/or delete Your Data. We also reserve the right to terminate and/or suspend your use of the Services, in whole or in part, in our sole discretion and with or without notice (a) if you violate these Terms; (b) if we suspect that you are using the Services for fraudulent purposes; (c) if we believe termination or suspension is necessary to protect the integrity of our Services or systems; (d) to comply with our polices or applicable laws and regulations; or (e) if you no longer agree to receive electronic communications from us. 

6.2 Effect of Termination. Upon any termination of these Terms or upon suspension or termination of your Account, you must immediately stop using the Services. If you have Paid Services, you will not be relieved of your payment obligations to us, and any outstanding payments will be due and payable immediately following termination or expiration. In no event will you be entitled to a refund of any fees paid to us hereunder.

6.3 Survival. Sections 2.5, 4, 5.3, 5.4, 6.2, 6.3, 7.1, 8, 9, 10, and 11 will survive any termination or expiration of these Terms.

7. Payment.

Unless you have signed up for a paid subscription, you are entitled to use the basic version of the Services at no charge.

If you buy any of our Services that are offered on a payment or subscription basis (“Paid Services”), the terms of this Section 7 apply unless we tell you otherwise. If you use Services that we make available to you at no charge, this Section 7 does not apply.

7.1 You agree to pay us the applicable fees and taxes for Paid Services, which will be billed to you in U.S. dollars. We may calculate taxes based on the billing information that you provide us. Failure to pay these fees will result in the termination of your Paid Services.

7.2 If you purchase a subscription, your payment method will be charged automatically at the start of each subscription period for the fees and taxes applicable to that period at our then-current rates. To avoid future charges, cancel before the renewal date.

7.3 We do not provide refunds for any Paid Services.

8. Disclaimer; Limit of Liability.

8.1 No Warranty. WE AND OUR AFFILIATED ENTITIES MAKE NO REPRESENTATION OR WARANTY ABOUT THE SERVICES, INCLUDING ANY REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE PROVIDE THE SERVICES (INCLUDING ANY CONTENT OR INFORMATION CONTAINED THEREIN) ON AN “AS IS” AND “AS AVAILABLE” BASIS.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATED ENTITIES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, ACCURACY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. IF ANY OF THESE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU OR ARE VOID WITH RESPECT TO YOU UNDER ANY APPLICABLE LAWS OR REGULATIONS, THE RESPECTIVE WARRANTIES THAT CANNOT BE EXCLUDED ARE LIMITED TO THE SHORTER OF (A) 90 DAYS FROM THE DATE OF FIRST PURCHASE OR FIRST DELIVERY OF THE SERVICES, AND (B) THE SHORTEST PERIOD PERMITTED BY THOSE LAWS AND REGULATIONS.

8.2 Exclusion of Certain Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (UNLESS WE HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH YOU THAT OVERRIDES THESE TERMS), IN NO EVENT WILL WE OR OUR AFFILIATED ENTITIES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THESE TERMS, OR ANY SERVICES PROVIDED HEREUNDER, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THESE TERMS OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.

8.3 Limitation of Liability. Our maximum aggregate liability arising out of these Terms will not exceed the fees paid by you under these Terms during the 12 month period immediately preceding the first assertion of any claim against us, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability, or other tort or otherwise.

9. Confidentiality; Feedback. 

9.1 Confidentiality. All code, inventions, know-how, pricing, business, technical and financial information or other non-public information one party (“Recipient”) obtains from the other party (“Discloser”) constitute Discloser’s confidential information (“Confidential Information”). The Graphite Platform is our Confidential Information. Except as expressly authorized herein, Recipient will not disclose any of Discloser’s Confidential Information except to its employees, contractors, and representatives who have a need to know and who are subject to confidentiality obligations at least as restrictive as those set forth herein. We may also disclose your Confidential Information to our Affiliated Entities. Recipient will take reasonable precautions (using no less than a reasonable standard of care) to protect Discloser’s Confidential Information from unauthorized access or use. Confidential Information does not include information that Recipient can establish: (i) has entered the public domain without Recipient’s breach of any obligation owed to Discloser; (ii) has been rightfully received by Recipient from a third party without breach of this Section; (iii) is rightfully known to Recipient without any obligation of confidentiality prior to receipt of Confidential Information; or (iv) has been independently developed without use of or reference to Discloser’s Confidential Information. Recipient may disclose Discloser’s Confidential Information if required pursuant to applicable law, regulation court order but only to the minimum extent required to comply therewith and provided that Recipient provides prior written notice to Discloser (to the extent legally permissible) and cooperates reasonably with Discloser regarding any protection actions Discloser wishes to undertake. Recipient shall, upon written request, securely return or destroy all of Discloser’s Confidential Information (including any copies or portions thereof) in Recipient’s custody or control.

9.2 Feedback. You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about the Services (collectively, “Feedback”). You grant us a perpetual and irrevocable license to, use, copy, publicly perform, publicly display, modify, distribute, or otherwise exploit such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.CE, STRICT LIABILITY, OR OTHER TORT.

10. Indemnification

You will indemnify and hold us and our Affiliated Entities harmless from and against any and all claims, liabilities, and expenses, including reasonable attorneys’ fees, arising out of your use of the Services or your breach of these Terms (“Claims”). We reserve the right, in our sole discretion and at our own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by us in the defense of any Claims. “Affiliated Entities” means our direct and indirect business affiliates, customers, licensees, users, vendors, investors and shareholders (whether now existing, prospective, or future), predecessors, agents, attorneys, advisors, insurers, directors, employees, officers, representatives, and agents, and any and all of the foregoing’s successors or assigns.

11. General.

11.1 Applicable Law. These Terms will be governed by and interpreted in accordance with the laws of the state of California, without regard to its conflicts of laws provisions. The United States Convention on Contracts for the International Sale of Goods does not apply to these Terms.

11.2 Binding Arbitration. ANY DISPUTES OR CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR THESE TERMS WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT. YOU AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU ARE WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS. The Federal Arbitration Act governs the interpretation and enforcement of this provision, and the arbitrator shall apply California law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. To begin an arbitration proceeding under these Terms, send a letter requesting arbitration and describing your claim to us at the main address posted on our main website. Arbitration will be conducted by the American Arbitration Association (“AAA”) before a single arbitrator under the AAA’s rules, which are available at www.adr.org. Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA’s rules, but if you are unable to pay any of them, we will pay them for you (but not your legal fees (if any), which you must pay as part of your arbitration proceedings). You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed on location. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. You acknowledge and agree that we would not provide the Services to you on the terms and in the form offered to you under these Terms if you had not agreed to arbitration and the waiver of class action rights described in this Section 11.2.

11.3 Export. You acknowledge that the Services are subject to applicable US export control laws, including US trade embargoes and sanctions and security requirements, and applicable country or local laws to the extent compatible with US laws. You agree that you will comply with these laws and regulations and will not export, re-export, import or otherwise make available products and/or technical data in connection with the Services and these Terms in violation of these laws, directly or indirectly.

11.4 Assignment. You cannot assign or transfer these Terms or your use of the Services without our prior written consent, except in connection with a merger, acquisition, or sale of all or substantially all of your assets, provided, however, that you must give us notice of such assignment within 30 days. We may assign or transfer these Terms to any party at any time, in whole or in part, with or without notice to you. These Terms will inure to the benefit of and will be binding upon you, us, and each of our permitted successors and assigns. There are no third party beneficiaries to these Terms.

11.5 Severability; Waiver. If any provision of these Terms is held to be invalid, you agree that such invalidity will not render the remainder of these Terms invalid. If any provision of these Terms is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable. Enforcement of these Terms is solely at our discretion, and our failure to enforce these Terms in some instances does not constitute a waiver of our right to enforce it in other instances.

11.6 Entire Agreement. These Terms, together with the AUP, our Privacy Policy, and any other policies referenced herein or made available to you through the Services, are the entire agreement between you and us with respect to your access to and use of the Services, and these Terms replace all prior understandings, communications, and agreements, oral or written, regarding its subject matter.

11. How to Contact Us.

If you have a question about the Services or these Terms, please contact us via email at [email protected]. For legal notices, you may write to us at [email protected].