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These Terms of Service (this "Agreement") is entered into as of the date you accepted this Agreement or as of the effective date listed on any Order that references this Agreement ("Effective Date"), by and between Graphon AI Inc. ("Graphon AI") and the Customer (as defined below). This Agreement sets forth the terms pursuant to which Customer will be permitted to purchase, subscribe to, access, or use certain of Graphon AI's products and services.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, SIGNING AN ORDER (AS DEFINED BELOW) REFERENCING THIS AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE SERVICES, YOU ("CUSTOMER" OR "YOU") AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR ACCESS TO OR USE OF THE SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, CUSTOMER DOES NOT HAVE GRAPHON AI'S PERMISSION TO ACCESS OR USE THE SERVICES. CUSTOMER'S USE OF THE SERVICES, AND GRAPHON AI'S MAKING AVAILABLE THE SERVICES TO CUSTOMER, CONSTITUTES AN AGREEMENT BY GRAPHON AI AND BY CUSTOMER TO BE BOUND BY THIS AGREEMENT. If Customer is an entity, organization, or company, then: (a) the individual accepting this Agreement on Customer's behalf represents and warrants that they have authority to bind Customer to this Agreement; (b) Customer agrees to be bound by this Agreement; and (c) the terms "Customer" and "you" shall refer to such entity.
Graphon AI provides a proprietary, patent-pending relationship system model to process video, audio, images, and documents for the purpose of providing complex analysis and insights (the "Services"). As part of the Services, Graphon AI may make available and one or more application programming interfaces ("APIs").
This Agreement set forth the terms and conditions on which Graphon AI may provide the Services as expressly identified: (a) in an order form signed by Customer and Graphon AI that references this Agreement; or (b) during the sign-up or ordering process on the Services (each, an "Order"). Services are purchased as stated in an Order in the manner established for the Services.
Subject to the terms and conditions of this Agreement and only as applicable in a given Order, Graphon AI hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, internal, limited right to access and use (including making calls to) the APIs during the Term through the use of a digital credential issued by Graphon AI that enables access to and use of the API (an"API Key") for the purpose of interconnecting and communicating with the Services. Customer will be responsible for all actions performed with all API Keys issued to it by Graphon AI for accessing the API(s). Graphon AI reserves the right to monitor Customer's use of the APIs and may restrict Customer's access to the APIs or limit the volume of API calls that Customer may make, including if Customer's use exceeds Graphon AI's API call limits or has a negative impact on performance of the Services. Graphon AI may, but has no obligation to, update, upgrade, or otherwise modify its APIs and features or functionality thereof. For avoidance of doubt, Customer's right to use the APIs is subject to Section 2.5 (Restrictions).
During a Subscription Term, subject to Customer's compliance with the terms of this Agreement, Customer may access and use the Services only for its internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in an Order. "Documentation" means the then-current version of Graphon AI's usage guidelines and standard technical documentation for the Services that Graphon AI makes generally available to its customers of the applicable Services.
Only Customer's employees or contractors that Customer allows to use the Services on Customer's behalf ("Users") using the mechanisms designated by Graphon AI ("Log-in Credentials"), may access and use the Services. To access the Services, Customer and its Users must register for an account ("Account") and, in doing so, may be required to provide Graphon AI with information (such name, email address, or other contact information). Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users' compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Graphon AI's breach of this Agreement). Customer will promptly notify Graphon AI if it becomes aware of any compromise of any Log-in Credentials. Graphon AI may Process Log-in Credentials in connection with Graphon AI's provision of the Services or for Graphon AI's internal business purposes.
Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Services to a third party (other than Users), including by providing an API Key issued to Customer to any third party; (b) use the Services or the API on behalf of, or to provide any product or service to, third parties; (c) use the Services to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs of the Services, except to the extent expressly permitted by applicable law (and then only with prior notice to Graphon AI); (e) modify or create derivative works of the Services or copy any element of the Services; (f) remove or obscure any proprietary notices in the Services; (g) publish benchmarks or performance information about the Services; (h) interfere or impair the operations of the Services, including by the introduction of malicious code or by excessive usage or network traffic; (i) disable or circumvent any access restrictions, including features that restrict access, monitor use, or enforce limitations on use; (j) conduct any security or vulnerability test of the Services; (k) transmit any viruses or other harmful materials to the Services; (l) take any action that risks harm to others or to the security, availability, or integrity of the Services; (m) access an API in a fraudulent manner, including by using any API Key or other digital credential not issued to Customer by Graphon AI; or (n) access or use the Services in a manner that violates any laws or regulations.
Customer agrees to immediately notify Graphon AI of any known or suspected unauthorized use of any API, including any such use that involves an API Key issued to Customer by Graphon AI. In the event that Graphon AI reasonably suspects that Customer has breached the terms of this Agreement, or that there has been misuse of an API Key that Graphon AI has issued to Customer, then Graphon AI may disable Customer's API Keys and suspend Customer's access to the API(s) immediately upon notice.
Graphon AI will make commercially reasonable efforts to provide support to Customer in connection with its use of the Services. Customer may contact Graphon AI at support@graphon.ai if Customer experiences any issue with respect to the Services. Except as expressly stated in this Agreement, Graphon AI is under no obligation to support or maintain the Services or to provide any updates, upgrades, or other technical support to Customer with respect to the Services or Customer's Customer Data. Customer's purchase of access to the Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Graphon AI regarding future functionality or features of the Services.
The Services may enable Customer and Users to submit, upload, or make available to the Services (including via Third-Party Platforms) prompts, videos, audio, images, data, files, materials (including, documents, emails, applications), queries, instructions, and other content ("Input"). As part of the Services, the Services may generate results, documents, materials, and other output based on Customer's Input ("Output"). As between Customer and Graphon AI, Graphon AI hereby assigns to Customer all right, title, and interest in and to the Output. The Input and Output are collectively "Customer Data."
Customer grants Graphon AI the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide the Services; (b) derive or generate information produced from the use of the Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer's use of the Services, but excluding any identifiable Customer Data (collectively, "Usage Data"); (c) create and compile Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual (collectively, "Aggregated Data"); and (d) as otherwise required by applicable laws or regulations or as agreed to in writing between the parties.
To the extent Personal Data as defined in Graphon AI's Privacy policy (the "Privacy Policy") is uploaded, transmitted, submitted, provided, or processed in connection with Customer's use of the Services, Graphon AI will comply with the Privacy Policy.
Graphon AI may collect, access, use, disclose, transfer, transmit, store, or otherwise process ("Process") Usage Data and Aggregated Data for any legally permitted purpose, such as to: (a) track use of Services for billing purposes; (b) provide support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) develop new products and services; (f) to improve Services and its other products and services, including the algorithms, models, and other content available on or through the Services; and (g) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
Graphon AI may make available one or more integrations through the Services that enable Customer to import or export information, including Customer Data, to or from Customer's account on a Third-Party Platform. A "Third-Party Platform" means any third-party platform, add-on, service, or product not provided by Graphon AI that Customer elects to integrate or enable for use with the Services. If Customer directs Graphon AI to transmit data to, or receive data from, a Third-Party Platform on Customer's behalf then Customer authorizes Graphon AI to Process any such data (including Customer Data) in connection with the applicable integration, in a manner consistent with the functionality of the Services requested by Customer and the permissions granted to Graphon AI by the relevant integration (which Processing may include performing queries on the data held by the Third-Party Platform). Use of Third-Party Platforms is subject to Customer's agreement with the relevant provider and not this Agreement. Graphon AI does not control and has no liability for any Third-Party Platform, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms use Customer Data.
Customer is responsible for its Customer Data, including its content and accuracy, and will comply with all applicable laws and regulations when using the Services and API. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Graphon AI to Process and use the Customer Data as set forth in this Agreement without violating or infringing applicable laws, third-party rights, or terms or policies that apply to the Customer Data. Customer will provide and maintain any hardware, software, other technology, and infrastructure that is necessary for Customer to access and use the Services. Customer represents and warrants that its use of the Services will at all times comply with applicable law and will not infringe the rights of any third party.
Customer shall be solely responsible for its actions and the actions of its Users while using the Services. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer's use of the Services, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Services which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain malicious code or data that may damage the operation of the Services or another's computer or mobile device; (d) not to upload in any way any data regarding an individual's financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either "Protected Health Information" subject to and defined by the Health Insurance Portability and Accountability Act, or an individual's first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual's financial account; (e) not to use the Services for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Services or interfere with other ability to access or use the Services; (g) not to distribute, promote or transmit through the Services any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer's use and enjoyment of the Services or another person or entity's use and enjoyment of similar services; (j) not to use the Services in any manner that impairs the Services, including without limitation the servers and networks on which the Services is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Services and Graphon AI's service providers; and (l) to use the Services only in accordance with the Documentation. Customer acknowledges and agrees that Graphon AI neither endorses the contents of any Customer communications, Customer Data, or other information nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Graphon AI may remove any violating content posted or stored using the Services or transmitted through the Services, without notice to Customer. Notwithstanding the foregoing, Graphon AI does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data, or any other information or data input into or stored in the Services for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data input into the Services. Graphon AI reserves the right to amend, alter, or modify Customer's conduct requirements as set forth in these Terms at any time. Graphon AI may deliver notice of such updated requirements to Customer via e-mail or through the Services. Customer's continued access to and use of the Services following issuance of such updated Customer requirements shall constitute Customer's acceptance thereof. Graphon AI may upon written notice to Customer amend this Section 6.2.
Customer acknowledges and agrees that the Services use large language models and other generative AI models and tools to provide the Services, including Graphon AI's proprietary relationship systems models. The Output is generated through machine learning processes and is not tested, verified, endorsed, or guaranteed to be accurate, complete, or current by Graphon AI. Customer acknowledges that due to the nature of the Services and artificial intelligence technologies generally, the Output may not be unique and other users of the Services may receive output from the Services that is similar or identical to the Output. Customer should independently review and verify all Output as to appropriateness for any or all Customer use cases or applications. Customer acknowledges and agrees that: (a) the Services may produce inaccurate, incomplete, misleading, or erroneous Output; (b) it is Customer's sole responsibility to verify the accuracy of any information obtained from the Services; and (c) Customer is responsible for Customer's own reliance on the Output.
Graphon AI may make the Services or certain features thereof available to Customer on a trial basis at its sole discretion ("Free Trial") for a trial period designated by Graphon AI (or if not designated, 30 days) ("Trial Period"). During the Trial Period, Customer may access and use the Services or designated features solely for Customer's internal evaluation and no other purposes.
Graphon AI may, at its sole discretion from time to time, add new features to the Services that may be described as "beta" or pre-release features or services (collectively, "Beta Features"). These Beta Features will be considered part of the Services and all provisions of this Agreement relating to the Services apply to these Beta Features. Beta Features may include partially functional or non-functional features of the Services. Beta Features may be inoperable, incomplete, or include features that Graphon AI may never release, and their features and performance information are deemed to be Graphon AI's Confidential Information.
Access to Free Trials and Beta Features are available at Graphon AI's discretion and where access is permitted, access by Customer or its Users is optional. Free Trials and Beta Features are provided "as is" without warranty of any kind, express or implied. Graphon AI will have no obligation to maintain, correct, update, change, modify, or otherwise support Free Trials or Beta Features and may discontinue providing Free Trials or Beta Features at any time, with or without notice. Graphon AI will not be liable for any lost revenue, lost profits, or other direct, indirect, incidental, or consequential damages arising out of or related in any way to the Free Trials or the Beta Features, even if advised of the possibility of such damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, GRAPHON AI PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR FREE TRIALS AND BETA FEATURES AND ITS LIABILITY FOR FREE TRIALS AND BETA FEATURES WILL NOT EXCEED US $50.00.
Graphon AI may immediately suspend Customer's access to any or all of the Services if: (a) Customer breaches Section 2.5 (Restrictions) or Section 6 (Customer Obligations); (b) Customer's account is 30 days or more overdue; (c) changes to applicable laws or regulations that require that Graphon AI suspend the Services or otherwise may impose additional liability on the part of Graphon AI; or (d) Customer's actions risk harm to any of Graphon AI's other customers or the security, availability, or integrity of the Services. Where practicable, Graphon AI will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Graphon AI will restore Customer's access to the Services.
A "Subscription Term" is the period during which Customer is authorized to access and use the Services is in effect, as identified in the applicable Order. Except as set forth in an Order, each Subscription Term for paid Services will automatically renew for successive terms equal in length to the Subscription Term unless either party gives the other party notice of non-renewal at least 30 days before the current Subscription Term ends.
Fees for the Services are described in each Order ("Fees"). All Fees will be paid in US dollars unless otherwise provided in an Order. Fees are due and payable on the terms and on the schedule in the Order. If Customer purchases Services that include usage-based Fees, Customer acknowledges that Graphon AI will charge Customer the Fees for the Services based on the usage calculated by Graphon AI. Unless the applicable Order provides otherwise, usage-based Fees are calculated based on Customer's daily usage of the Service, billed monthly in arrears. Graphon AI will use reasonable efforts to keep the pricing information for the Services that is published on Graphon AI's pricing page available up to date, and Graphon AI encourages customers to check it regularly for current pricing information. Graphon AI may make promotional offers with different features and different pricing to any of Graphon AI's other customers. These promotional offers, unless made to Customer, will not apply to Customer. Unless Graphon AI and Customer otherwise agree in a written order signed by the parties, Graphon AI may change the Fees for the Services (including any feature or functionality of the Services) at any time and Graphon AI will notify Customer of any such changes before they apply. If Customer pays by credit card, debit card, or other non-invoiced form of payment, Customer will pay all Fees immediately at the end of the billing period specified in the applicable Order. If Customer pays by invoice, Customer will pay all Fees within 30 days of the invoice date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by law, whichever is less. All Fees are non-refundable except as may be set out in Section 11.1 (Limited Warranty) and Section 15.4 (Mitigation). Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Graphon AI's income tax ("Taxes"). Fees are exclusive of all Taxes.
Customer authorizes Graphon AI to charge all sums for the Orders that Customer makes and any level of Service that Customer selects as described in this Agreement or published by Graphon AI, including all applicable Taxes, to the payment method specified in Customer's Account. If Customer pays any Fees with a credit card, then Graphon AI may seek pre-authorization of Customer's credit card account prior to Customer's purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer's purchase. Customer agrees that Graphon AI may seek pre-authorization of the credit card account Customer provides to Graphon AI for payment prior to any purchase. If Customer's payment method is no longer valid at the time a Fee is due, then Graphon AI reserves the right to delete Customer's Account and any information or Customer Data associated with Customer's Account without any liability to Customer. To facilitate payments due hereunder via bank account, credit card or debit card, Graphon AI currently uses Stripe, Inc. ("Processor"), a third-party payment processor. As a condition of Graphon AI enabling payment processing services through Processor, Customer represents and warrants to Graphon AI that any information about its payment instruments and/or bank accounts is true and that it is authorized to use the payment instrument and/or bank account, as applicable. Customer also hereby authorizes Graphon AI to share such information and other transaction information related to its use of the payment processing services provided by Processor. Graphon AI may replace Processor at any time and will notify Customer of any such change. Graphon AI assumes no liability or responsibility for any payments made through Processor.
Graphon AI warrants to Customer that the Services will perform materially as described in its Documentation (the "Limited Warranty") during a Subscription Term (the "Warranty Period"). If Graphon AI breaches the Limited Warranty during the Warranty Period and Customer makes a reasonably detailed warranty claim in the manner specified by Graphon AI within 30 days of discovering a breach of the Limited Warranty for the applicable Services, then Graphon AI will use reasonable efforts to correct the non-conformity. If Graphon AI cannot do so within 30 days of receipt of Customer's warranty claim, either party may terminate the affected Order as it relates to the non-conforming Services. Graphon AI will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term. This Section sets forth Customer's exclusive remedy and Graphon AI's entire liability for breach of the Limited Warranty. This warranty does not apply to: (a) issues caused by Customer's or Users' misuse of or unauthorized modifications to the Services; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the Services other than according to the Documentation; or (d) Free Trials and Beta Features.
Except as expressly provided in Section 11.1 (Limited Warranty), the Services (including the Output), API, and all other Graphon AI services are provided "AS IS." Graphon AI, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Graphon AI does not warrant that Customer's use of the Services or API will be uninterrupted or error-free, that Graphon AI will review Customer Data or Output for accuracy, or that it will maintain Customer Data without loss. Graphon AI is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Graphon AI's control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
The term of this Agreement (the "Term") starts on the Effective Date and continues until expiration or termination of all Subscription Terms.
Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
Upon expiration or termination of an Order, Customer's access to and Graphon AI's obligations to provide the Services described in the Order will cease. After expiration or termination of this Agreement, Graphon AI will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 16, may be retained in Graphon AI's standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement's confidentiality restrictions. Upon expiration or termination of this Agreement, Customer will immediately cease accessing the API, and will destroy any API Keys issued by Graphon AI in Customer's possession or control. On Graphon AI's request, Customer will provide Graphon AI with a written certification signed by an authorized representative certifying that Customer has destroyed all API Keys and that all API access has been discontinued.
These Sections and all definitions survive expiration or termination of this Agreement: 2.5 (Restrictions), 4.4 (Usage Data; Aggregated Data), 6 (Customer Obligations), 8.3 (Disclaimers) 10.2 (Fees and Taxes), 11.2 (Disclaimers), 12.3 (Effect of Termination), 12.4 (Survival), 13 (Ownership), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 17 (Required Disclosures), and 19 (General Terms). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data provided to Graphon AI. Except for Customer's use rights in this Agreement, Graphon AI and its licensors retain all intellectual property rights and other rights in the Services, Documentation, Usage Data, API, and Graphon AI technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Graphon AI. If Customer provides Graphon AI with feedback or suggestions regarding the Services or other Graphon AI offerings, Graphon AI may use the feedback or suggestions without restriction or obligation.
Except for Excluded Claims (as defined below) neither party (nor its suppliers or licensors) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.
Except for Excluded Claims, each party's (and its suppliers' and licensor's) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Graphon AI pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement.
"Excluded Claims" means: (a) Customer's breach of Sections 2.5 (Restrictions) or 6 (Customer Obligations); (b) either party's breach of Section 16 (Confidentiality) (but excluding claims relating to Customer Data); or (c) amounts payable to third parties under the indemnifying party's obligations in Section 15 (Indemnification).
The waivers and limitations in this Section 14.4 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
Graphon AI will defend Customer from and against any third-party claim to the extent alleging that the Services, as operated by Graphon AI, when used by Customer as permitted under the applicable Order infringes or misappropriates a third-party's U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys' fees) or agreed in a settlement by Graphon AI resulting from the claim.
Customer will defend Graphon AI from and against any third-party claim to the extent resulting from Customer Data or Customer's breach or alleged breach of Section 6 (Customer Obligations), and will indemnify and hold harmless Graphon AI against any damages and costs awarded against Graphon AI (including reasonable attorneys' fees) or agreed in a settlement by Customer resulting from the claim.
The indemnifying party's obligations in this Section 15 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party's expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party's prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services, when Graphon AI is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Graphon AI determines necessary to avoid material liability, Graphon AI may at its option: (a) procure rights for Customer's continued use of the applicable Services; (b) replace or modify the allegedly infringing portion of the Services to avoid infringement or misappropriation without reducing the Service's overall functionality; or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.
Graphon AI's obligations in this Section 15 do not apply: (a) to infringement or misappropriation resulting from Customer's modification of Services or use of Services in combination with items not provided by Graphon AI (including Third-Party Platforms); (b) to infringement resulting from or based on the Output or use thereof; (c) to unauthorized use of Services; (d) if Customer settles or makes any admissions about a claim without Graphon AI's prior consent; or (e) Free Trials, Beta Features, or other free or evaluation use.
This Section 15 sets out Customer's exclusive remedy and Graphon AI's entire liability regarding infringement or misappropriation of third-party intellectual property rights.
"Confidential Information" means information disclosed to the receiving party ("Recipient") under this Agreement that is designated by the disclosing party ("Discloser") as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Graphon AI's Confidential Information includes Usage Data, Aggregated Data, the terms and conditions of this Agreement, and any technical or performance information about the Services. Customer's Confidential Information includes Customer Data.
As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.2 (Use of Customer Data) and Section 5 (Third-Party Platforms); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser's request, Recipient will delete all Confidential Information, except, in the case where Graphon AI is the Recipient, Graphon AI may retain the Customer's Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Graphon AI, the Third-Party Platforms), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16.
These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 16.
Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by applicable law, subpoena, or court order, provided (if permitted by applicable law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
Neither party may publicly announce that the parties have entered into this Agreement, except with the other party's prior consent or as required by applicable law. However, Graphon AI may include Customer and its trademarks in Graphon AI's customer lists and promotional materials but will cease further use at Customer's written request.
Graphon AI may revise this Agreement from time to time with notice to Customer (email or posting on Graphon AI's website being sufficient). Revisions will be effective immediately except that, for existing users, material revisions will be effective upon the start of Customer's next renewal Subscription Term. Graphon AI may require that Customer accept the revised Agreement in order to continue to use the Services. If Customer does not agree to the revised Agreement, then Customer should discontinue its use of the Services. Except as expressly permitted in this Section 19.1 (Modification), this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement.
This Agreement, including the Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between Customer and Graphon AI regarding your use of the Services. Customer may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without Graphon AI's prior written consent. Graphon AI may assign this Agreement and all rights granted under this Agreement, including with respect to your Customer Data, at any time without notice or consent. The failure to require performance of any provision will not affect Graphon AI's right to require performance at any other time after that, nor will a waiver by Graphon AI of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, pandemic, epidemic, health emergency, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster. Throughout this Agreement the use of the word "including" means "including but not limited to." If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
This Agreement is governed by the laws of the State of Washington and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in King County, Washington and both parties submit to the personal jurisdiction of those courts.
Customer's use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that Graphon AI may post on or link to from the Services ("Additional Terms"). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
By using the Services, Customer consents to receiving certain electronic communications from Graphon AI as further described in Graphon AI's Privacy Policy. Please read Graphon AI's Privacy Policy to learn more about Graphon AI electronic communications practices. Customer agrees that any notices, agreements, disclosures, or other communications that Graphon AI sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
The Services are offered by Graphon AI Inc. located at 51 Federal Street, Suite 402, San Francisco, CA 94107. Customer may contact Graphon AI by sending correspondence to that address or by emailing Graphon AI at support@graphon.ai.
If Customer is a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
Customer will comply with all relevant U.S. and foreign export and import laws and regulations in using the Services. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country; (b) agrees not to access or use the Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.