Graft Products and Services
Terms and Conditions of Use
Updated and effective as of June 16, 2015.
READ THIS AGREEMENT CAREFULLY.
1. Definition of Terms
As used in these Terms and Conditions of Use:
(a) “Graft,” “we,” “us,” or “our” (whether or not capitalised) means Ignition Design Pty Ltd and its subsidiaries.
(b) “You,” “yourself”, “user,” and “customer” (whether or not capitalised) refer to the individual or legal entity registering for or using the Graft Products or Services.
(c) “Graft Products or Services” means data publication services, websites, all other documentation, features, tools, Graft Software, and any other products or services provided by Graft or its authorised agents, distributors, and licensees.
(d) “Graft Software” means software provided to you or for your use by Graft.
(e) “Computer” (whether or not capitalised) means a desktop or laptop computer, network device, handheld or portable device, and any storage device attached to them in any fashion.
(f) “Personal Information” means information that you may provide at the time of registration or otherwise, such as name, physical location or address, IP address, e-mail address, employment, or similar information that identifies you as a specific individual.
(g) “Publication Data” includes any text or media you upload through Use of the Graft Products or Services and any related data that are in the possession of Graft or Graft Associates.
(h) To “Publish” documents or information means to provide to or make them accessible to you by mailing, emailing, desktop messaging, faxing, or delivering them to you, or by posting them to any website you visit to register for, subscribe to, license, buy, or Use Graft Products or Services.
(i) To “Use” or “Using” Graft Products or Services means each time you visit a Graft website, register with Graft, download Graft Software, use Graft Software to view or modify Publication Data or request support.
(j) “Graft Associate” means persons or entities who have provided products, licenses, or services to Graft and persons or entities with which Graft has entered into an agreement to sublicense or to provide Graft Products or Services to users.
(k) “Days” (whether or not capitalised) means calendar days.
2. Acceptance of Terms and Conditions of Use; Modification; Cancellation
By registering to Use Graft Products or Services, and each time you Use an Graft Product or Service, you affirm your acceptance of these Terms and Conditions of Use and agree to comply with them now and throughout the period of your Use of the Graft Products or Services and thereafter, as noted in Section 6 (Graft License to You; Renewals, etc.) below. If you do not agree to these Terms and Conditions of Use in their entirety, do not Use Graft Products or Services.
Graft may change the Terms and Conditions of Use at any time, without prior notice to you, and in its sole discretion. The new or modified Terms and Conditions of Use will be effective immediately after we publish them on our website at http://www.grafthq.com/.
If you do not agree to be bound by Graft’s Terms and Conditions of Use as Published by Graft from time to time, your sole and exclusive remedy is to discontinue using Graft Products or Services.
If you wish to cancel your Graft license after a change in the Terms and Conditions of Use, you must do so in writing or by email within thirty (30) days after your next Use of a Graft Product or Service following the change in the Terms and Conditions of Use. For this type of cancellation you will receive a pro-rata refund for the unused portion of your Graft license as of your date of notice. You acknowledge and agree that if you do elect to cancel your license within this specified period after a change in the Terms and Conditions of Use, or if you cancel your license or fail to renew an expired or terminated license for any reason, Graft may delete any information that Graft has obtained through your Use of Graft Products or Services, including without limitation, your Publication Data.
3. Requirements for Registration or Use of Graft Products
Graft Products or Services are intended and offered only for lawful Use by individuals or organisations with the legal capacity and authority under applicable law to enter into a contract for such products or services. By registering for and/or by Using Graft Products or Services, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the Graft Terms and Conditions of Use and that you will Use Graft Products or Services only in accordance with these Terms and Conditions of Use and with all applicable laws. If an individual is registering or Using Graft Products or Services on behalf of an entity or organisation, that individual warrants, represents, and covenants to Graft that such individual is duly authorised to agree to these Terms and Conditions of Use on behalf of the organisation and to bind the organisation to them. If an individual uses Graft Products or Services that are provided by any third party including any person, entity or organisation, the individual Using the Graft Products or Services, by virtue of such use, agrees that any information the individual provides to Graft (including but not limited to the individual’s Publication Data and Personal Information) will be accessible to, and may be viewed, changed, or deleted by the person, entity or organisation that provided the Graft Products or Services to the individual.
You agree to provide accurate and complete information when you register for a Graft Product or Service and you agree to keep such information accurate and complete during the entire time that you Use Graft Products or Services.
We may ask you from time to time to establish a user name or password to access or Use the Graft Products or Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password.
4. Changes to the Graft Products or Services
Graft has the right at any time to change, modify, add to, discontinue, or retire any Graft Product or Service and any aspect or feature of the Graft Products or Services including, but not limited to, the software, hours of availability, equipment needed for access or Use, the types of files that are acceptable media, the maximum disk space that will be allotted on Graft servers on your behalf either cumulatively or for any particular service, or the availability of Graft Products or Services on any particular device or communications service.
Graft will provide notice of material changes to the Graft Products or Services or changes to this Agreement by posting them to http://www.grafthq.com/. Graft shall have no obligation to provide you with notice of any such changes in any other manner. It shall be your responsibility to check our website periodically to inform yourself of any such changes.
From time to time, Graft may issue new releases, revisions, or enhancements to the Graft Products or Services available to you free of charge or for a fee. New releases, revisions or enhancements may be licensed, downloaded, and installed only to the extent that you hold a valid license to Use the Graft Products or Services being updated or upgraded, and you may Use them only in accordance with the then-current Terms and Conditions of Use and any additional license terms that may accompany them.
Graft may automatically update Graft Products or Services you have installed on your computer without your prior consent. You agree that we may automatically check your version of the Graft Software and automatically update the Graft Software on your computer. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related activities and services. If any automatic updates involve the payment of additional fees, we will provide you with the opportunity to approve such fees prior to the update being enabled. If you fail or refuse to approve such fees, Graft may, in its sole discretion, terminate your current license, continue to support your current Graft Products or Services without the automatic update, or replace your Graft Products or Services with other Graft Products or Services. If Graft terminates your current license on account of your failure or refusal to approve such fees, then Graft will refund, on a pro-rata basis based on the remaining term of the current license, any fees related to the period during which you will not have access to your Graft Products or Services. If Graft updates the Graft Products or Services without requiring an additional fee and you object to such change, your sole remedy shall be to terminate your use of the Graft Products and Services.
5. Graft License to You
(a) Scope of License. Graft grants you a non-exclusive, non-transferable limited and revocable license to install the Graft Software only on the computer(s) for which you have paid the applicable fees and taxes and from which you are licensed to access the Graft Products or Services, and to Use the Graft Products or Services for the sole and exclusive purposes of connecting to and Using the Graft Products or Services for your personal or internal business purposes in accordance with these Terms and Conditions of Use. We reserve all other rights to the Graft Products or Services.
You may not sub-license, or charge others to Use or access the Graft Products or Services and you may not redistribute the Graft Products or Services or provide others with access to or Use of them, unless you have entered into a separate Reseller Agreement or other agreement with Graft that expressly authorises you to engage in this activity. Without limiting the forgoing, you will not permit others to Use the Graft Products or Services to access data stored on servers provided by Graft or Graft Affiliates; and you will not Use or permit others to Use the Graft Products or Services to provide publication services to others, whether or not such services are compensated.
(b) Trial Licenses. You may have received as part of your Graft license the opportunity to extend the expiration date of your license or trial through the Use of various marketing codes. If you do not enter these codes at the time you purchase your license or start your trial license, Graft will not add this additional time to your license or trial at a later date.
If you received a free trial or evaluation license for which you have not paid a license fee, Graft grants to you a non-exclusive, non-transferable limited license to Use the Graft Software during the trial or evaluation period in accordance with these Terms and Conditions of Use.
6. Assignment and Delegation by Graft
Graft may, in its sole discretion, transfer or assign all or any part of its rights in the Graft Software, the Graft Products or Services, and any license or contract related thereto, and may delegate all or any portion of its duties, if any, under any such Graft Products or Services, licenses, or other contracts.
7. No Transfers or Modifications by You
You may not sell, assign, grant a security interest in or otherwise transfer any right in the Graft Products or Services, nor incorporate them (or any portion of them) into another product or service. You may not copy the Graft Products or Services. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the Graft Software.
You may not modify the Graft Software or use it in any way not expressly authorised by these Terms and Conditions of Use. You may not obtain the communications protocol for accessing the Graft Products. You may not authorise or assist any third party to do any of the foregoing.
8. Publication Data
You may post, upload, publish, submit or transmit Publication Data to be made available through the Graft Products or Services. By making available any Publication Data through the Graft Products or Services, and unless you have agreed otherwise in writing with Graft, you hereby grant to Graft a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Publication Data in any and all publication methods (whether or not currently in use by Graft), including, without limitation, on the Graft Products or Services.
You retain ownership rights in any Publication Data and nothing in these Terms and Conditions of Use will be deemed to restrict any rights that you may have to use and exploit any such Publication Data. Graft reserves the right to remove or modify any Publication Data from the Graft Products or Services for any reason, including Publication Data we believe violates these Terms and Conditions of Use.
You are solely responsible for all Publication Data that you make available through the Graft Products or Services. Accordingly, you represent and warrant that: i) you either are the sole and exclusive owner of all Publication Data that you make available through the Graft Products or Services or you have all rights, licenses, consents and releases that are necessary to grant to Graft the rights in such Publication Data, as contemplated under these Terms and Conditions of Use; ii) neither the Publication Data nor your posting, uploading, publication, submission or transmittal of the Publication Data or Graft’s use of the Publication Data (or any portion thereof) on, through or by means of the Graft Products or Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or contractual rights or agreements, or result in the violation of any applicable law or regulation; and iii) you agree not to create Publication Data which is excessively objectionable or crude, pornographic, designed primarily to upset or disgust users, or is defamatory, offensive, mean-spirited or vilifies a religious, cultural or ethnic group or individual.
9. Customer Support
Graft may, in its sole discretion, provide customer support or service to you. This service may be available only on selected days and during a limited number of hours. Service may also be available through only certain delivery vehicles such as email or telephone and some services may only be available for the payment of an additional fee or charge. As part of the delivery of services, Graft may employ a variety of tools to aid in the process of resolving your issues as a user. You grant Graft the right to use these tools and hold Graft harmless for the use of these tools as well as the guidance provided by its customer support staff who, you acknowledge, cannot be fully aware of all of the complexities associated with the Graft Products or Services, your computer, or all of the related or associated infrastructure that may affect the performance of your systems or your ability to use the Graft Products or Services. You agree and understand that certain programs, files, information or data you restore may require that you have access to or retain license keys that Graft may not have backed up and that you will retain any needed copies of such information. You agree and understand that certain programs, applications or utilities will require configuration in order to access data restored from your Graft Products or Services and that Graft has no obligation to assist, and may not be able to assist, you with such configurations.
10. Restrictions on Access to Graft Products or Services
You may access Graft Products or Services only through the interfaces and protocols provided or authorised by Graft. You agree that you will not access Graft Products through unauthorised means, such as unlicensed software clients.
You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use Graft Products or Services. Without limiting the foregoing, you must pay all charges, taxes, and other costs and fees related to obtaining your own Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by you to access Graft Products or Services.
12. Termination and Fair Use Policy
Graft shall have the absolute and unilateral right in its sole discretion to deny use of and access to all or any portion of Graft Products or Services to users who are deemed by Graft to be using the Graft Products or Services in a manner not reasonably intended by Graft or in violation of law, including but not limited to suspending or terminating a user’s account with Graft and the license to use the Graft Products or Services.
13. Data Collection, Encryption, Privacy, and Disclosure
(a) WARRANTY. Graft warrants that the Graft Products or Services will for a period of thirty (30) days from the date of registration and payment perform substantially as specified in the applicable Graft documentation. If you satisfactorily demonstrate to Graft within such thirty (30) day period that a Graft Product or Service contains errors, then as Graft’s sole and exclusive liability and as your sole and exclusive remedy, Graft shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the Graft Product or Services affected with a substantially conforming product or service, or refund the fee you paid for the Graft Product or Service and terminate your license under the Terms and Conditions of Use.
(b) DISCLAIMER OF OTHER WARRANTIES. The limited warranty in the preceding paragraph is in lieu of all other warranties, express or implied, written or oral, except for any warranty of merchantability or fitness for purpose, or warranty arising by statute or otherwise by law
15. Limitation of Liability
With respect to defects or deficiencies in the Graft Products or Services, the liability of Graft and Graft Affiliates will be limited to performance of its responsibilities under Section 15 (Warranties) above. With respect to other breaches of contract, the liability of Graft and Graft Affiliates shall be limited to your actual damages, and in no event will such liability exceed the total amount received by Graft from you under these Terms and Conditions of Use for your current license period, and only such amounts as relate to the computer affected by the breach. In no event will Graft, the Graft contractors, Graft distributors or Graft suppliers be liable to you or to any third party for any lost profits, lost data, interruption of business, or other special, indirect, incidental, or consequential damages of any kind arising out of the use or inability to use the Graft Products or Services.
Neither Graft nor any Graft Affiliate assumes any liability to any party other than you arising out of your Use or inability to Use the Graft Products or Services. The limitations of damages set forth above are fundamental elements of the bargain between Graft and you. Graft would not be able to provide the Graft Products or Services to you without such limitations.
You agree to defend, indemnify and hold harmless Graft, Graft affiliates, and their respective directors, officers, employees and agents from and against all claims, damages, losses, liabilities, and expenses, including without limitation attorneys’ fees, arising out of your use of the Graft products or Services and/or your violation of any term of these terms and conditions of use.
Graft reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, and only in such event, shall you have no further obligation to provide a defense for Graft in that matter. If Graft chooses to provide its own defense in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defense of Graft and Graft Affiliates, at your own expense, to the full extent requested by Graft.
17. Trademarks, Service Marks, and Other Intellectual Property
All trademarks, service marks or other similar items appearing on the Graft Products or Service are the property of their respective owners, including, without limitation, Graft.
The Graft Products or Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the Graft Products or Services shall remain with Graft and its licensors. You agree not to take any action to jeopardize, limit, or interfere in any manner with Graft’s or its licensor’s ownership of or rights with respect to the Graft Products or Services.
This software includes components from third-parties, the license of which may grant you further rights over those components only.
18. Governing Law
All provisions of this Agreement shall be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Australia, without regard to conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods as well as any other similar law, regulation or statute in effect in any other jurisdiction shall not apply
19. Termination, Expiration, Cancellation
(a) Trial and Evaluation Licenses. If this Agreement pertains to a trial, beta, or evaluation license (such as a license that provides a limited amount or an unlimited amount of Publication Data for free, for which you have not paid a fee and/or for which you do not pay a fee and associated taxes on or prior to expiration), the license granted under these Terms and Conditions of Use will terminate upon the expiration or cancellation of the trial or evaluation period, when the Graft Product or Service you are using is no longer made available or when Graft cancels or terminates the license, whichever is shorter. You agree to Use the Graft Products or Services for no longer than the trial or evaluation period unless you enter into another license and pay a license fee and associated taxes as applicable, or Graft allows your license to roll over for another period which Graft may elect to do at its sole discretion and without notice to you.
(b) All Other Licenses; Limited Term. Your license will end upon the expiration of its stated term, upon your non-renewal of the licenses, upon your cancellation of the license, when Graft elects to discontinue the product, upon your breach of these Terms and Conditions of Use (if such breach is not cured within the time indicated below in this Section 19 (Termination, Expiration, Cancellation), or when Graft cancels or terminates your license, whichever occurs first (any such expiration, cancellation, discontinuation, or termination are referred to hereafter as “termination.”)
(c) Termination for Unlawful or Abusive Use, Other Breach. Graft may block your access to your Publication Data and/or terminate your Use of the Graft Products or Services if Graft reasonably believes that the Publication Data may be used to support illegal activities, if providing Graft Products or Services to a person located in a particular country would violate any applicable law, or if your continued Use of Graft Products or Services may damage, disable, overburden, or impair our servers or networks.
If you breach these Terms and Conditions of Use, your right to Use the Graft Products or Services shall automatically terminate if you fail to cure the breach after seven (7) days after notice from Graft or any of the Graft Affiliates, unless your breach is due to violations of Section 7 (No Transfers or Modifications by You), Section 8 (Publication Data), Section 16 (Indemnification), Section 17 (Trademarks), in which case termination will be without notice and without any right to remedy the breach.
Upon termination: i) you shall immediately cease any and all Use of the Graft Products or Services and delete all copies of them; ii) the Graft Software may be disabled by Graft without notice to you; and iii) you will no longer have the right to access or retrieve your Publication Data; you hereby grant Graft at its sole discretion the unrestricted right to delete or retain all such Personal Information and Publication Data at any time after termination, without notice.
In the event of any termination, expiration, or cancellation, the restrictions on your Use of the Software and the other applicable restrictions as set forth in Section 5 (Graft License), Section 7 (No Transfers or Modifications by You), Section 8 (Publication Data), Section 14 (Warranties), Section 15 (Limitation of Liability), Section 16 (Indemnification),Section 17 (Trademarks, Service Marks, and Other Intellectual Property), Section 18 (Governing Law), Section 20 (Survival), Section 21 (Notice), Section 24 (Limitation on Actions), Section 25 (Miscellaneous) and Section 26 (Severability) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms.
Any notice that may or must be given by Graft in connection with this Agreement or in connection with the Use of the Graft Products or Services, may be given by sending it to the email address provided by you upon registering for the Graft Products or Services or as you may provide from time to time thereafter by modifying your user profile at http://www.grafthq.com/. You are responsible for ensuring that your accurate email address is available to Graft and provide any needed updates. Graft may, in its sole discretion, use other means of providing notice, such as: desktop notification; regular, certified, or registered mail; fax; commercial delivery service; or messenger. All such notices shall be deemed given when dispatched with payment of delivery charges made or arranged. You hereby consent to receiving notice by any such means. Notwithstanding the foregoing, Graft has no obligation to provide notice or attempt to locate a customer other than through the email address provided.
22. English Language
These Terms and Conditions of Use were negotiated and written in English. Any inconsistency between the Terms and Conditions of Use as expressed in English and any other language shall, to the full extent permitted by applicable law, be resolved by reference to the English version.
23. Entire Agreement; Applicability of Terms; Construction; Limit to Modifications; Conflicts in Terms
These Terms and Conditions of Use (including the items incorporated by reference and modifications that may be made from time to time), constitute the entire agreement between Graft and you regarding Graft Products or Services, and supersedes all prior agreements between you and Graft regarding the subject matters hereof.
Any item or service furnished by Graft in furtherance of these Terms and Conditions of Use, although not specifically identified in them, shall nevertheless be covered by these Terms and Conditions of Use unless specifically covered by some other agreement entered into in written or electronic form between you and us.
Any modification or change in these Terms and Conditions of Use proposed or offered by you shall not become a part of these Terms and Conditions of Use unless accepted in a writing dated after the effective date of the applicable Terms and Conditions of Use and signed by an authorised officer of Graft.
Should there be any conflict in terms between this Agreement and any other document, the terms and conditions set forth in this Agreement shall govern.
Any references that are singular or plural and any references that are masculine, feminine, or neuter in gender, are meant to be used interchangeably as the context of the sentence might imply.
24. Limitation on Actions
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law must be commenced within one year after the cause of action accrues.
You agree to reimburse Graft for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by Graft.
Graft is not responsible for misprints, errors or omissions in its advertising and promotional materials.
If you have designated a person (whether by email, orally, by registering such person with Graft, by granting such person access to your username and password or by having your computer registered for Graft Products or Services where another party is paying for your use of the Graft Products or Services) to have access to your Publication Data, you hereby authorise Graft to give such designated person access to your Publication Data, including without limitation in the event of your death or incapacity.
This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent underlying such provision and ii) such invalidity or unenforceability will not affect the validity or enforceability of any other provision of this Agreement and all such provisions shall remain in full force and effect.
27. Billing Issues
You must notify us about any billing problems or discrepancies within sixty (60) days after they first appear on the statement you receive from your bank or credit card company or other billing company. Send such notification to us at the Graft Contact Information indicated in Section 29 (Graft Contact Information) below. If you do not bring such problems or discrepancies to our attention within that sixty (60) day period, you agree that you waive the right to dispute such problems or discrepancies.
28. Managing Your Graft Product or Service
You acknowledge and agree that where Graft licenses an entity or organisation, or where an entity or organisation makes the Graft Products or Services available to you, the entity or organisation so licensed or giving you access may grant multiple individuals rights related to the management and Use of the Graft Products or Services and the Publication Data, without any notice to you. These rights may enable one or more persons to: view, access or change Publication Data or Personal Information; determine who can access the account, Publication Data, and Personal Information; determine who is responsible financially for the account; and other similar actions.
29. Graft Contact information
If you have any questions or comments, please contact us at email@example.com