1. Binding Contractual Relationship This “Subscription Agreement for Gravity Software™ Services” (the “Agreement”) is a binding contractual relationship between Gravity Software LLC (“Gravity”) and you the Licensee (defined below). In accepting the terms and conditions of this Agreement, Licensee acknowledges that Licensee and the individuals accessing the services (the “End Users”) on behalf of the Licensee are bound by the terms and conditions of this Agreement.
Please read the terms and conditions of this Agreement as the protections set forth herein constitute material consideration for Gravity. Without the protections offered to Gravity pursuant to this Agreement, Gravity would not offer the Services (defined below) to Licensee and its End Users.
IF LICENSEE DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, LICENSEE SHOULD REFRAIN FROM USING THE SERVICES.
IF AN INDIVIDUAL END USER DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THAT END USER SHOULD REFRAIN FROM USING THE SERVICES.
a. Business Entity as Licensee If the Services are being used on behalf of a business entity such as corporation, partnership, or LLC rather than an individual human being, then the business entity is the Licensee pursuant to this Agreement. In that circumstance, the individual expressing their consent to the terms and conditions of this Agreement are also representing that he or she is authorized by the Licensee to bind the Licensee to this Agreement. The terms and conditions of this Agreement are binding on the Licensee as well as the individuals accessing the Services (the “End Users”) on behalf of the Licensee.
b. Individual End User as Licensee If the Services are being used on behalf of an individual human being and not a business entity, than the individual human being is both an End User and a Licensee pursuant to this Agreement. To the extent that an individual End User enables another End User to access their Account (defined below), both End Users are jointly and severally responsibility for any Damages resulting from the second End User’s access to the Services.
c. Prohibited Licensees and End Users Individuals and business entities in competition with Gravity in terms of the Services may not utilize the Services. Use of the Services constitutes a representation to Gravity of non-competition.
2. Definitions All terms identified in text that is both bolded and italicized is a defined term set forth below.
a. Account means a user ID and password that is associated with a Licensee and/or End User.
b. Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
c. Agreement means this “SUBSCRIPTION AGREEMENT FOR GRAVITY SOFTWARE SERVICES” and all the terms and conditions set forth herein.
d. Confidential Information means information that is not generally accessible to the public. Confidential Information can include:
i. Content that is submitted by the Licensee and its End Users;
iii. Attributes of the Software and Service;
iv. Internal business information relating to one of the Parties.
v. Confidential Information does not include information that: (i) is rightfully supplied to a Party by a third party without restrictions on confidentiality, or (ii) becomes generally publicly known without any fault on the part of the Party receiving such information pursuant to this Agreement.
e. Content means data submitted by Licensee or an End User to the Website as part of accessing the Services.
f. Documentation means collectively all information provided by Gravity to a Licensee in a tangible form, including but not limited to user manuals and help screens.
g. End User means an individual human being accessing the Services.
h. Gravity means Gravity Software LLC, a Michigan Limited Liability Company.
i. IP Rights means collectively patents, copyrights, trademark, trade secrets, trade dress, know-how, and all other cognizable proprietary rights. IP Rights includes such rights whether currently vested, pending, or contingent upon future filings.
j. Licensee means a Party accessing the Services through an Account with the Website.
k. Losses means collectively any and all claims, damages, injuries, liabilities, fines and penalties.
l. Malicious Code means collectively any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
m. Party means a party to this Agreement, such as Gravity or Licensee. Parties refers collectively to both Gravity and Licensee.
n. Services means collectively the benefits and functionality provided by Gravity to a Licensee through the Software accessible to the Licensee on the Website. The Services pertain to the functions as described in the Documentation such as creating invoices, paying bills, tracking inventory, and book keeping/accounting activities. The Services provided pursuant to this Agreement are a beta-version of the Services provided to Licensees and End User without any compensation paid to Gravity.
o. Software means the computer program(s) accessible on Website that enable an authorized Licensee with a valid Account to access the Services.
p. Term means the period of time for license has paid for services.
q. Territory means anywhere in the world except for Iran, Syria, North Korea, and Cuba or any country in the identified in the future by the U.S. government where an EAR99 technology would require an export license.
r. Website means the webpage accessible at https://company.go-gravity.com.
3. Right to Access the Services For the duration of the Term, Gravity grants Licensee and its authorized End Users the non-exclusive right to access the Services from the Website through End Users located within the Territory. The right to access the Services is contingent upon compliance with the terms and conditions of this Agreement as well as the operational availability of the Website.
a. Warranty to Gravity by Licensee and its End Users In using the Website and accessing the Services, Licensee and End User warrant to Gravity that (i) no attempt will be made to enter into the Accounts associated with other Licensees or End Users; (ii) no attempt will be made to introduce Malware to the Software or Website; (iii) no attempt will be made to reverse engineer the Services; (iv) the Services will not be utilized for illegal purposes; (v) no denial of service attacks against the Website will be initiated or tolerated; (vi) all use of the Services will be in a good faith and commercially reasonable manner; (vii) Account information will be maintained in a suitably confidential manner; and (viii) they are authorized to submit the Content submitted to the Website.
b. Reservation of Rights By using the Website, Licensee and End User acknowledge and agree that all IP Rights embodied in the Website, Software, and Services are retained by Gravity. Except for the access grant provided above, Gravity or its suppliers retain ownership all IP Rights.
4. FEES The Services provided pursuant to this Agreement are subject to the fee structure defined by Gravity as described on its web site and are subject to change without notice.
5. DISCLAIMERS; EXCLUSIONS; LIABILITY LIMITATIONS; AND INDEMNIFICATION
a. “AS IS” The Services are provided on an “AS IS” basis with no warranties whatsoever.
b. Disclaimer of Warranties ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND QUIET ENJOYMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. ALL EXPRESS AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
c. Damages Exclusions IN NO EVENT WILL GRAVITY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSSES, LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE WEBSITE EVEN IF GRAVITY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
d. Limitations of Liability To the full extent permitted by law, Gravity is not liable for any direct, indirect, punitive, special, incidental, consequential, or exemplary damages whatsoever arising out of or in connection with the Services whether or not Gravity has previously been advised of, or reasonably could have foreseen the possibility of such damages however arising, including, without limitation, unauthorized access to or alteration or dissemination of Website data or content, or any malicious or criminal behavior or false or fraudulent actions. The limit of Gravity’s liability is the total fees paid by Licensee, throughout the Term of the Agreement.
e. Indemnification Licensee and its End Users shall indemnify, defend, and hold Gravity harmless from all Losses relating to or arising from a breach of this Agreement.
6. IP RIGHTS
a. Copyrights The Website is the property of Gravity and is protected by United States Copyright Act of 1976, as amended, and the copyright laws of other countries. All content, logos, designs and icons are proprietary to Gravity or its affiliates, agents, or licensees. The content of the Website including graphic images, buttons and text, may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, without the prior written permission or Gravity, except that you may download, display, or print one copy of the materials on a single computer solely for your personal, non-commercial, home use, provided that you keep intact all copyright, trademark and other proprietary notices. Modification of the materials or use of the materials for any other purpose is a violation of copyrights and other proprietary rights.
b. Trademarks The marks appearing on the Website are the trademarks or trade dress of Gravity. Gravity’s trademarks and trade dress may not be used in connection with any product or service that is not Gravity’s, in any manner that is likely to cause confusion in the marketplace, or in any manner that disparages or discredits Gravity or the Website. All other trademarks not owned by Gravity that appear on this site are the IP Rights of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Gravity.
c. Notification ProcedureIf you believe that your work has been copied in a way that constitutes copyright infringement or trademark infringement, please e-mail Gravity at firstname.lastname@example.org and provide ALL of the written information specified below:
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
· A description of the copyrighted work that you claim has been infringed upon;
· A description of where the material that you claim is infringing is located on the Website;
· Your address, telephone number, and email address;
· A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; AND
· A statement by you, made under penalty of perjury, that the above information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
7. TERM AND TERMINATION
a. Term This Agreement shall expire upon the conclusion of the Term and cannot be renewed. If Licensee wishes to utilize the Services after the end of the Term, Licensee must first execute the applicable subscription agreement with Gravity that will require the payment of the applicable fee.
b. Termination for Breach Gravity may terminate this Agreement upon the breach of this Agreement by Licensee or its End Users.
c. Termination for Convenience Licensee can terminate this Agreement for convenience upon providing a 90 day written notice to Gravity.
d. Survival Upon termination or expiration of this Agreement, the grant of access to the Services pursuant to Section 3 shall terminate. All other sections of this Agreement shall survive the termination or expiration of the Agreement.
8. GENERAL PROVISIONS
a. Responsibility for Content Gravity takes no responsibility and assumes no liability for any Content that you submit in receiving the Services.
b. Confidentiality Each Party shall use commercially reasonable efforts to avoid using or disclosing the Confidential Information of the other Party.
c. Entire Agreement This Agreement contain all of the understandings and agreements between Licensee, its End Users, and Gravity with respect to the use of the Website and the accessing of the Services. Any and all prior understanding and agreements, expressed or implied, between you and Gravity are hereby superseded.
d. Severability In the event any one or more of the terms or provisions contained in this Agreement or any application thereof finally shall be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement or any application thereof shall not in any way be affected or impaired, except that, in such an event, this Agreement shall be deemed revised in order to provide the party adversely affected by such declaration with the benefit of its expectation, evidenced by the provision(s) affected by such a declaration, to the maximum extent legally permitted.
e. Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Michigan, without reference to its conflict of laws principles that would require the application of some other law.
f. Exclusive Jurisdiction Any dispute arising from this Agreement must be brought in the state courts of Oakland County, Michigan or the federal courts of the Eastern District of Michigan.
g. Waiver of Jury Trial The Parties hereby waive the right to trial by jury and any defense based upon venue, the inconvenience of forum, lack of personal jurisdiction, the sufficiency of service of process, or the like in any such action of suit.
h. Assignment Neither Licensor nor any End User may assign or transfer their Account to any third party. Any such attempted assignment shall be void ab initio.
i. Force Majeure Neither Party shall be liable for any Loss deemed to be in default under this Agreement if its failure to perform its obligations results from acts of God, natural disasters, fires, strikes, embargoes, war, insurrection, riot or other cause beyond the reasonable control of the party; provided however that the foregoing shall not be deemed to excuse any failure to exercise prudence or diligence in the conduct of such Party’s affairs.
j. Section Headings. Headings of the sections in this Agreement are for the convenience of the parties only. Accordingly, they shall not constitute a part of this agreement when interpreting or enforcing this agreement.
k. Breach and Waiver. No waiver of any breach of this Agreement shall: (a) be effective unless it is in a writing which is executed by the party charged with the waiver, or (b) constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof.
l. Contact Information Gravity can be contacted with your comments, questions, or concerns at email@example.com Licenser agrees that any e-mail sent to the e-mail address associated with Licensee’s Account shall be deemed received by Licensee upon leaving the e-mail server used by Gravity.
m. Third Party Services You may be made aware of services, products, offers and promotions provided by third parties, and not by Gravity. If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions governing any Third Party Services. You agree that the third party, and not Gravity, is responsible for the performance of the Third Party Services.
9. Finicity Services
- Licensee Access Information and Account Data. You are solely responsible for (a) maintaining the confidentiality and security of your access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, used by you, or anyone you authorize on your behalf, to access the Services and your provider accounts (collectively, “Licensee Access Information”), and (b) preventing unauthorized access to or use of the information, files or data that you store or use in or with the Services (collectively, “Account Data”). You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting and other data (“Communications”) entered using the Licensee Access Information. It is assumed that any Communications received through use of the Licensee Access Information were sent or authorized by you. You agree to immediately notify us if you become aware of any loss, theft or unauthorized use of any Licensee Access Information. We reserve the right to deny you access to the Services (or any part thereof) if we reasonably believe that any loss, theft or unauthorized use of Licensee Access Information has occurred. You must inform us of, and hereby grant to us and our third party vendors permission to use, Licensee Access Information to enable us to provide the Services to you, including updating and maintaining Account Data, addressing errors or service interruptions, and to enhance the types of data and services we may provide to you in the future. Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is collected through your use of the Services, may be used by our third party vendors to conduct certain analytical research, performance tracking and benchmarking. Our third party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support. Your personally identifiable information will not be shared with or sold to third parties.
- Provider Services
- General. In connection with your use of the Services and as part of the functionality of the Services, you may have access to certain online services or information that may be made available by your provider(s) (“Provider Services”), including online banking, online payment, online investment account download, online bill pay, online trading, and other account information available from your provider(s). The Services are designed to allow you to access Provider Services (if and to the extent provided by your provider(s)) to set up banking and other information, schedule the Services to access your account(s), download transactions into the Services and otherwise aggregate information from your account(s) with your provider(s). You acknowledge and agree that we have no control over the provision of Provider Services or provision of access to the Provider Services by your provider(s), do not guarantee that you will be able to use the Services with the Provider Services, and will have no liability whatsoever for any actions or inactions on the part of the provider(s) resulting in your inability to use the Services to access your accounts, obtain data, download transactions, or otherwise use or access the Provider Services.
- Collection of Provider Account Information. You acknowledge that in accessing your data and information through the Services, your provider account access number(s), password(s), security question(s) and answer(s), account number(s), login information, and any other security or access information, and the actual data in your account(s) with such provider(s) such as bank and other account balances, credit card charges, debits and deposits (collectively, “Provider Account Data”), may be collected and stored in the Services. You authorize us and our third party vendors, in conjunction with the operation and hosting of the Services, to use certain Provider Account Data to (a) collect your Provider Account Data, (b) reformat and manipulate such Provider Account Data, (c) create and provide hypertext links to your provider(s), (d) access the providers’ websites using your Provider Account Data, (e) update and maintain your account information, (f) address errors or service interruptions, (g) enhance the type of data and services we can provide to you in the future, and (h) take such other actions as are reasonably necessary to perform the actions described in (a) through (g) above. You hereby represent that you are the legal owner of your Provider Account Data and that you have the authority to appoint, and hereby expressly do appoint, us or our third party vendors as your agent with limited power of attorney to access and retrieve your Provider Account Data on your behalf. You further acknowledge that we do not, nor does our third party vendor review your Provider Account Data and agree that we are not responsible for its completeness or accuracy. Any transactions or informational activities performed at any provider’s website are not made through the Services and we assume no responsibility for such transactions or activities. You are solely responsible for any charges associated with your provider(s).
- Information from Providers’ Websites. You acknowledge and agree that (a) some providers may not allow the Services to access the Provider Services, (b) providers may make changes to their websites, with or without notice to us, that may prevent or delay aggregation of information from such websites, and (c) the Services may “refresh” the Provider Account Data by collecting the Provider Account Data nightly, so your most recent transactions may not be reflected in any account balances or other account information presented to you in the Services. If you see a discrepancy in the Provider Account Data, and in any case before making any transactions or decisions based on such account information presented in the Services, you should check the last refresh date for the account and confirm Provider Account Data is correct by following the link back to the applicable provider or otherwise confirm that Provider Account Data is up to date and accurate.
- SOFTWARE USE, STORAGE AND ACCESS. We shall have the right, in our sole discretion and with reasonable notice, to establish or change limits concerning use of the Services, temporarily or permanently, including but not limited to (a) the amount of storage space you have on the Services at any time, and (b) the number of times (and the maximum duration for which) you may access the Services in a given period of time. We reserve the right to make any such changes effective immediately to maintain the security of the system or Licensee Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Services to which such changes relate. Your continued use of the Services will constitute your acceptance of and agreement with such changes. Maintenance upon the Services may be performed from time-to-time resulting in interrupted service, delays or errors in the Services. Attempts to provide prior notice of scheduled maintenance will be made, but provider cannot guarantee that such notice will be provided.
- EXPORT RESTRICTIONS. You acknowledge that the Services and any software underlying such Services are subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export the software or Services, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions; (b) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (c) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that this product may include technical data subject to export and re-export restrictions imposed by U.S. law.
- DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND ANY THIRD PARTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE THIRD PARTY VENDOR AND ITS LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, AND DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES OR ANY THIRD PARTY SERVICES; IN WHOLE OR IN PART, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. YOU UNDERSTAND AND EXPRESSLY AGREE THAT ANY USE OF THE SERVICES OR THIRD PARTY SERVICES WILL BE AT YOUR SOLE RISK. VENDOR AND ITS (a) LICENSORS AND (b) THIRD PARTY VENDORS DO NOT WARRANT THE COMPREHENSIVENESS, COMPLETENESS, CORRECTNESS, LEGALITY, OR ACCURACY OF THE SERVICES OR THIRD PARTY SERVICES, IN WHOLE OR IN PART, OR THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES OR THIRD PARTY SERVICES.