Last Updated: June 15, 2016
These Terms provide that all disputes between you and Graphus will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 19 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Graphus.
1. Graphus Site Overview
The Site provides documentation, user forums, and other information and community support primarily related to Graphus’ security and systems management solutions (such solutions, the “Graphus Services”).
You must be at least 18 years of age to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Site; and (c) your registration and your use of the Site is in compliance with all applicable laws and regulations. If you are using the Site on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
3. Accounts and Registration
To access certain features of the Site, including the user forums, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at [email protected]
4. User Content
- User Content Generally. Certain features of the Site may permit users to upload content to the Site, including messages, queries, integration information, reviews, images, video, data, text, source code, and other types of works (“User Content”) and to publish User Content on the Site. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Site.
- Limited License Grant to Graphus. By posting or publishing User Content, you grant Graphus a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, use, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
- Limited License Grant to Other Users. By posting or sharing User Content with other users of the Site, you grant those users a non-exclusive license to access that User Content as permitted by these Terms and the functionality of the Site.
- User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Graphus and users of the Site to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Graphus, the Site, and these Terms; and
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Graphus to violate any law or regulation.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Graphus may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Site you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Graphus with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Graphus does not permit copyright-infringing activities on the Site.
5. Digital Millennium Copyright Act
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Site, you may contact our Designated Agent at the following address: Graphus Inc.
ATTN: Legal Department (Copyright Notification) 11111 Chessington Pl, Reston, VA 20194 Email: [email protected]
Any notice alleging that materials hosted by or distributed through the Site infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of those materials on the Site is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Repeat Infringers. Graphus will promptly terminate the accounts of users that are determined by Graphus to have repeatedly posted or shared User Content that may infringe the rights of others.
6. Prohibited Conduct
BY USING THE SITE YOU AGREE NOT TO:
- use the Site for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- interfere with security-related features of the Site or the Graphus Services, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Site or the Graphus Services, except to the extent that the activity is expressly permitted by applicable law; or (c) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code;
- interfere with the operation of the Site or any user’s enjoyment of the Site, including by: (a) making any unsolicited offer or advertisement to another user of the Site; (b) attempting to collect personal information about another user or third party without consent; or (c) interfering with or disrupting any network, equipment, or server connected to or used to provide the Site, or violating any regulation, policy, or procedure of any such network, equipment, or server;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Site account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 10) or any right or ability to view, access, or use any Material; or
- attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
7. Termination of Use; Discontinuation and Modification of the Site.
You may terminate your account at any time by contacting customer service at [email protected] If you violate any provision of these Terms, your permission from us to use the Site will terminate automatically. In addition, Graphus may in its sole discretion terminate your user account on the Site or suspend or terminate your access to the Site at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or use of the Site.
9. Modification of these Terms
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Site. Material modifications are effective upon your acceptance of the modified Terms. Non-material modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. License to Sample Code
Certain portions of the Site contain computer program examples demonstrating or aiding the use of the Graphus Services, along with associated documentation and other example files or directories (“Sample Code”). Graphus hereby grants to you a worldwide, non-exclusive, non-transferable, non-sublicensable license during the term of these Terms and subject to your compliance with these Terms to:
- internally use and make a reasonable number of copies of the Sample Code, including, without limitation, for back-up, development, support, training, internal testing, quality assurance and evaluation purposes;
- use, modify, reproduce, create derivative works of and distribute, directly or indirectly, the Sample Code in connection with the development of computer software related to the Graphus Services which Graphus has granted you the right to create under a separate agreement (“User Programs”);
- use, modify, reproduce, create derivative works of and distribute, directly or indirectly, compiled versions of the Sample Code in connection with User Programs; and
- grant end users a sublicense to use compiled versions of the Sample Code in connection with User Programs.
11. Restrictions on Sample Code
The license to the Sample Code set out in Section 10 does not grant you any rights to any Graphus intellectual property other than the Sample Code, nor does it grant you permission to develop any User Programs or any other program that relates to or interoperates with the Graphus Services. In addition, you will not yourself, nor through any affiliate, agent or third party, use, modify, reproduce, create derivative works of or distribute the Sample Code except as necessary to develop User Programs.
12. Ownership; Proprietary Rights
The Site is owned and operated by Graphus. The visual interfaces, graphics, design, compilation, information, documents, data, software, computer code (including source code or object code), Sample Code, services, and all other elements of the Site provided by Graphus (“Materials”) are protected by intellectual property and other laws. All Materials contained in the Site are the property of Graphus or our third-party licensors. Except as expressly authorized by Graphus, you may not make use of the Materials. Graphus reserves all rights to the Materials not granted expressly in these Terms.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site or the Graphus Service, including information related to Graphus Service queries and integration with third-party tools and data formats (collectively, “Feedback”), then you hereby grant Graphus an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Site or the Graphus Services.
You are responsible for your use of the Site, and you will defend and indemnify Graphus and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Graphus Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
15. Disclaimers; No Warranties
THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE GRAPHUS ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE GRAPHUS ENTITIES DO NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Graphus ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SITE, YOUR DEALING WITH ANY OTHER SITE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SITE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SITE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. Limitation of Liability
IN NO EVENT WILL THE GRAPHUS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, DATA, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY GRAPHUS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS PROVIDED IN SECTION 19.4(iii), THE AGGREGATE LIABILITY OF THE GRAPHUS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO GRAPHUS FOR ACCESS TO AND USE OF THE SITE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Governing Law
These Terms are governed by the laws of the State of Virginia without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Graphus agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Fairfax County, Virginia for the purpose of litigating any dispute. We operate the Site from our offices in Virginia, and we make no representation that Materials included in the Site are appropriate or available for use in other locations.
19. Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Graphus in the most expedient and cost effective manner, you and Graphus agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GRAPHUS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 19.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Graphus will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Graphus.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Graphus’ address for Notice is: Graphus Inc., 11111 Chessington Pl, Reston, VA 20194. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Graphus may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Graphus must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Graphus will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Graphus in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
- Fees. If you commence arbitration in accordance with these Terms, Graphus will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Fairfax County, Virginia, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Graphus for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND GRAPHUS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Graphus agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications of This Arbitration Provision. If Graphus makes any future change to this arbitration provision, other than a change to Graphus’ address for Notice, you may reject the change by sending us written notice within 30 days of the change to Graphus’ address for Notice, in which case your account with Graphus will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 19.6 is found to be unenforceable or if the entirety of this Section 19 is found to be unenforceable, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.
20. Consent to Electronic Communications
The Site is offered by Graphus Inc., located at 11111 Chessington Pl, Reston, VA 20194. You may contact us by sending correspondence to that address or by emailing us at [email protected]