Posted: July 21, 2014
Effective Date: July 21, 2014
Throughout this Agreement, we may use certain defined words or phrases, and it is important that you understand their meaning.
“Application(s)” means the software application(s) made available on the Website, any accompanying documentation, and all updates, upgrades, and enhancements thereof that may be provided by us hereunder.
“Confidential Information” means any information disclosed by either party pursuant to this Agreement that is (a) is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty days, or (c) under the circumstances should in good faith be considered to be confidential. Confidential Information includes, without limitation, information related to: research, product plans, products, developments, inventions, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing. Notwithstanding the foregoing, all technology or proprietary information underlying the Application(s), YesGraph Content, YesGraph Data, Website, and YesGraph System shall be deemed our Confidential Information without any need for designating the same as confidential or proprietary.
“Developments” means the collective ideas, know-how, or techniques developed or conceived by us as a result of providing the YesGraph System to you, including without limitation any derivative works, improvements, enhancements and/or extensions made to the Applications, YesGraph Content, YesGraph Data, Website, or YesGraph System, as well as all suggestions, comments, or other feedback related to the Applications, YesGraph Content, YesGraph Data, Website, or YesGraph System or any other Confidential Information of ours, and all intellectual property rights therein and thereto throughout the world.
“Intellectual Property Rights” means all rights of the following types, under the laws of any jurisdiction worldwide: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (b) trade secret rights; (c) patent and industrial property rights; (d) other proprietary rights of every kind and nature; and (e) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the above.
“YesGraph Content” means all content, including without limitation software (in object or source code form), script, programming code, data, information, structural hierarchies, processes, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text, contained in the YesGraph System except for the User Content.
“YesGraph Data” means all data generated by the YesGraph System, including without limitation, internal analytics data, payment data, aggregate statistics, reports, and visualizations.
“YesGraph System” means the Applications operated on our hosting servers or those of our hosting service provider intended to enable you to interact with the same via the internet. Without limiting the foregoing, the YesGraph System shall include the Applications, the YesGraph Content, the Website, and the User Interface.
“User Content” means any content uploaded or made available by you, including, without limitation, emails, names, social graph connections, and profile information such as location, interests, and behavior.
“User Interface” means the web-based interface hosted by us by which you may access the YesGraph System’s ordering and payment management technology.
“Website” means the website located at yesgraph.com, and all subdomains, subpages, and successor sites thereof.
You can use the Service only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules, and regulations. The Service is not available to any users previously removed from the Service by us.
Your YesGraph account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of users. If you open a YesGraph account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
You may never use another user’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords with your account. You must notify us immediately of any breach of security or unauthorized use of your account. We will not be liable for any losses caused by any unauthorized use of your account.
By providing us your email address, you consent to our using that email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service. If you do not want to receive such email messages, you may opt out or change your preferences on the settings page associated with your YesGraph account. Opting out may prevent you from receiving email messages regarding updates or improvements.
We may, without prior notice, change the Service or any part thereof, including, without limitation, the Applications or YesGraph System, stop providing the Service or any features thereof (whether to you or to users generally), or create usage limits for the Service.
You agree not to engage in any of the following prohibited activities: (a) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (b) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the YesGraph servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (c) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (d) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (e) uploading invalid data, viruses, worms, or other software agents through the Service; (f) collecting or harvesting any personally identifiable information, including account names, from the Service; (g) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding, or attempting to hide your identity; (h) interfering with the proper working of the Service; (i) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (j) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We will host and maintain the Applications on servers operated and maintained by or at our direction. We may in our sole discretion modify, enhance or otherwise change the Applications. We may delegate the performance of certain portions of the YesGraph System to third parties, including our wholly owned subsidiaries. We will host and maintain the User Interface, and provide you access to the User Interface pursuant to a password protected user account. We reserve the right to periodically change issued passwords. We will provide prompt notice to you of any such password changes.
You will be responsible for obtaining and maintaining at your expense all the necessary computer hardware, software, modems, connections to the internet and other items required for your access and use of the YesGraph System, Website, and User Interface. You shall provide the User Content, or assist us in procuring User Content from your customers or vendors, as applicable, as mutually agreed upon between you and us. During the Term, you shall use commercially reasonable efforts to cooperate with us in developing and sharing testimonials, case studies, marketing materials, return-on-investment calculations, and measurement criteria for the purpose of substantiating the value, benefits, and cost savings derived from the YesGraph System.
License to You. Subject to the terms and conditions of this Agreement, we hereby grant you a limited, personal, non-transferable license during the Term to: (a) access and use the Applications and YesGraph Content via the YesGraph System solely in the manner contemplated by this Agreement; (b) use the YesGraph Data solely to use and evaluate the YesGraph System; and (c) access and use the Website as required to use the Applications and YesGraph Content via the YesGraph System.
License to Us. Subject to the terms and conditions of this Agreement, you hereby grant us a limited, worldwide, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, display, store, archive, and make derivative works of the User Content in order to provide the YesGraph System, including, without limitation, the creation of YesGraph Data. We may not sublicense or resell the User Content or any component thereof.
License Restrictions. You shall not, and shall not permit any third party to: (a) use the Applications, YesGraph Content, YesGraph Data, Website, or YesGraph System except to the extent permitted in the “License to You” section; (b) modify or create any derivative work of any part of the Applications, YesGraph Content, YesGraph Data, Website, or YesGraph System; (c) market, sublicense, publish, distribute, reproduce, resell, assign, transfer, rent, lease, or loan the Applications, YesGraph Content, YesGraph Data, Website, or YesGraph System; or (d) use the Applications, YesGraph Content, YesGraph Data, Website, or YesGraph System for commercial time-sharing or service-bureau use.
Reservation of Rights. We reserve all rights to the Applications, YesGraph Content, YesGraph Data, Website, and YesGraph System not otherwise expressly granted in this section.
You agree to pay the fees incurred from your use of the Applications and YesGraph System. All amounts payable to us hereunder will be invoiced to you on a monthly basis. You shall pay each invoice issued by us hereunder within thirty (30) days of the invoice date via credit card, wire transfer, or ACH debit to an account designated by us. All payments shall be made in U.S. dollars in immediately available funds, and are non-refundable. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less. You shall pay any sales, use, and other taxes and similar charges based on or arising from the YesGraph System, this Agreement or its performance (other than taxes based on our net income).
General. Each party represents and warrants that: (a) such party is a corporation duly organized, validly existing, and in good standing under the laws of the state of its incorporation, and has the full power and authority to enter into and perform its obligations under this Agreement; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and (d) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement. You represent and warrant that your execution, delivery, and performance of this Agreement, including without limitation the provision of User Content, does not and will not violate any applicable statute, regulation, or law, or infringe any intellectual property right or other legal right of any third party.
Disclaimers. EXCEPT AS PROVIDED IN THE “PAYMENTS AND TAXES” SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE YESGRAPH SYSTEM AND ALL RELATED INFORMATION, TECHNOLOGY, AND SERVICES PROVIDED BY OR ON OUR BEHALF ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND WE EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WE ARE ADVISED OF THE PURPOSE), ACCURACY, AND/OR NON-INFRINGEMENT. IN ADDITION, WE DO NOT WARRANT THAT ACCESS TO THE YESGRAPH SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE APPLICATIONS WILL MEET YOUR NEEDS, OR THAT DATA WILL NOT BE LOST. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE YESGRAPH SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE YESGRAPH SYSTEM IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE YESGRAPH SYSTEM.
We reserve the right to suspend or terminate your access to the Applications and YesGraph System in whole or part at any time, with or without cause, and with or without notice, without incurring liability of any kind. Upon termination or expiration of this Agreement, all licenses granted hereunder shall immediately terminate. The remaining provisions of this Agreement shall survive such termination.
EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, THE AGGREGATE LIABILITY OF US AND OUR LICENSORS TO YOU ARISING FROM ITS ACCESS TO OR USE OF THE YESGRAPH SYSTEM, OR OUR PROVISION OF TECHNICAL SUPPORT, INSTALLATION, TRAINING OR OTHER SERVICES IN CONNECTION THEREWITH, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, STRICT LIABILITY, NEGLIGENCE AND/OR OTHER TORT, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES THAT HAVE BEEN PAID TO US FOR ACCESS TO AND USE OF THE YESGRAPH SYSTEM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL WE OR OUR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY RELATED TO THE PROCUREMENT OF SUBSTITUTE GOODS. THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS FOR THIS AGREEMENT AND SHALL SURVIVE REGARDLESS OF THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
Our Ownership Rights. Subject only to the limited license expressly granted under this Agreement, as between us and you, we shall retain all right, title, and interest in and to the Applications, YesGraph Content, YesGraph Data, Website, YesGraph System (excluding the User Content), Developments, and YesGraph Data, and all Intellectual Property Rights therein. Nothing in this Agreement will confer on you any right of ownership or interest in the Applications, YesGraph Content, YesGraph Data, Website, YesGraph System (excluding the User Content), Developments, and YesGraph Data, and all Intellectual Property Rights therein. To the extent you have or obtain any right, title, or interest in the Applications, YesGraph Content, YesGraph Data, Website, YesGraph System (excluding the User Content), Developments, and YesGraph Data, and all Intellectual Property Rights therein, you hereby assign, and agree to assign, without further consideration, to us all such right, title, and interest you may have or obtain.
Your Ownership Rights. Subject only to the limited license expressly granted hereunder, as between you and us, you shall retain all right, title and interest in and to the User Content, and all Intellectual Property Rights therein. Nothing in this Agreement will confer on us any right of ownership or interest in the User Content, or the Intellectual Property Rights therein.
Indemnity. Each party shall indemnify, defend, and hold the other party and its affiliates, and its and their officers, members, directors, employees, agents, successors and assigns harmless from and against all liabilities (including liabilities arising out of the application of the doctrine of strict liability), obligations, losses, damages, penalties, fines, claims, penalties, actions, suits, judgments, costs, expenses, and disbursements (including reasonable legal fees and expenses and reasonable costs of investigation) (“Losses”) caused by or otherwise arising from such party’s breach of its representations and warranties in the “Warranties and Disclaimers” Section. You shall indemnify, defend, and hold us and our affiliates, and our and their officers, members, directors, employees, agents, successors and assigns harmless from and against all third-party claims and Losses arising from: (a) your use of and access to the Service, including any data or content transmitted or received by you; (b) any other party’s access and use of the Service with your unique username, password, or other appropriate security code; or (c) any infringement or misappropriation claim that arises from: (v) modifications to the YesGraph System by you or anyone other than us; (w) modifications to the YesGraph System based upon specifications furnished by you; (x) your use of the YesGraph System other than as specified in this Agreement or in the applicable documentation; (y) use of the YesGraph System in conjunction with third-party software, hardware, or data other than that approved by us; or (z) any combination of the foregoing.
Process. The indemnified party shall promptly notify the indemnifying party in writing of any claim for which it seeks indemnification hereunder; provided that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such claim; provided, however, that (a) the indemnifying party shall keep the indemnified party informed of, and consult with the indemnified party in connection with the progress of such litigation or settlement; and (b) the indemnifying party shall not have any right, without the indemnified party’s written consent, to settle any such claim in a manner that does not unconditionally release the indemnified party.
Remedies. In the event any portion of the YesGraph System is held or believed by us, or any portion of the User Content is held or believed by , to infringe intellectual property rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the YesGraph System is used or accessed, then in addition to any other rights in this Section 10, we (where the Infringing Materials are the YesGraph System) or you (where the Infringing Materials are User Content) shall, at our or your, as applicable, sole expense and option: (a) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (b) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (c) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (d) if none of the foregoing remedies is commercially feasible, terminate this Agreement..
Sole Remedy for Intellectual Property Violations. This Section 10 contains each party’s sole and exclusive remedy, and each party’s entire liability, with respect to infringement or alleged infringement of third party intellectual property rights relating to the YesGraph System and the subject matter of this Agreement.
Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, upon request each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party; provided however, that we may retain copies of your Confidential Information for routine backup and archival purposes. Notwithstanding the foregoing, the obligations set forth in this Section 11 shall not apply with respect to any information to the extent that it is: (a) already in the possession of the receiving party prior to the first disclosure hereunder as shown by records or files; (b) is already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (c) is approved in writing by the disclosing party; (d) is required to be disclosed by applicable legal authority provided that, if practicable, adequate notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure; or (e) is independently developed by either party without use of the Confidential Information from the other party.
This Agreement shall be construed in accordance with applicable U.S. federal law and the laws of the State of California without regard to conflict of laws principles. In the event a dispute arises out of or in connection with this Agreement, the parties will attempt to resolve the dispute through friendly consultation. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues shall be finally settled by arbitration in Palo Alto, California. Notwithstanding the foregoing, each party shall have the right to institute an action in the state or federal courts of Santa Clara County, California for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s).
You shall not assign nor transfer any obligations or benefit under this Agreement without our prior written consent, which shall not be unreasonably withheld or delayed, except that you may assign this Agreement to a successor in interest by way of merger, reorganization, asset sale, or the like. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or different kind. All notices, modifications and waivers under this Agreement must be in a writing executed by a duly authorized representative of each of the parties. If any provision of this Agreement is determined to be unenforceable, that provision will be replaced with the valid one that most closely achieves the parties’ intent and the remainder of this Agreement will remain enforceable. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.
Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.