(Effective: July 23, 2020)
This End-User License Agreement (this “Agreement”) is a legal document that contains the terms and conditions under which limited use of certain Software (as defined below) that operates with the services licensed to you.
Please Read This Agreement Carefully before Installing or Using This Grafi.as Services.
BY CHECKING THE BOX OR CLICKING THE BUTTON TO CONFIRM YOUR ACCEPTANCE WHEN YOU FIRST INSTALL THE SOFTWARE, YOU ARE AGREEING TO ALL THE TERMS OF THIS AGREEMENT. ALSO, BY USING, COPYING OR INSTALLING THE SOFTWARE, YOU ARE AGREEING TO ALL THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT CHECK THE BOX OR CLICK THE BUTTON AND/OR DO NOT USE, COPY OR INSTALL THE SOFTWARE, AND UNINSTALL THE SOFTWARE FROM ALL DEVICES THAT YOU OWN OR CONTROL. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND YOU PURCHASED A GRAFI.AS SERVICES CONTAINING THE SOFTWARE FROM AN AUTHORIZED RETAILER, RESELLER OR APP STORE (AS DEFINED BELOW), YOU MAY BE ELIGIBLE TO RETURN THE GRAFI.AS SERVICES FOR A REFUND, SUBJECT TO THE TERMS AND CONDITIONS OF THE APPLICABLE POLICY.
This Software licensed to you by Grafi.as and, where applicable, by Grafi.as suppliers. “Software” means any and all firmware programs and associated files provided with respect to the Grafi.as Services; any and all software programs, applications or “apps” and associated with the Apps provided with respect to the Grafi.as Services; all modified versions of and upgrades or improvements to such programs (such as those provided via web-based updates), all subsequent versions of such programs, and all copies of such programs and files. Software does not include any Open Source Software (as defined below).
By “you,” we mean the purchaser, recipient or other end user of the Grafi.as Services containing the Software or the purchaser, recipient or other end user of the Software on a standalone basis. “You” may also mean a person who has downloaded the Software from an authorized website, such as http://www.wp.grafiaslive.com or from an authorized application market or store, such as Apple’s Store or Google Play (each such application market or store is referred to in this Agreement as an “App Store” and collectively as “App Stores”).
- License Grant.
Grafi.as hereby grants you the right to use: (i) where your Grafi.as Services is not a “Small-Medium Business or SMB” branded Grafi.as Services, for your personal, non-commercial purposes; or (ii) where your Grafi.as Services is a “Small Medium Business or SMB Grafi.as Services, for your personal or commercial use; copies of the Software in object code form on devices that you own (or, in the case of firmware, one copy of the firmware in object code form solely on the Grafi.as Services relating to the firmware). As part of this license, you may (A) operate the Software in the manner described in the user documentation for the Software; (B) where the Software is provided for download onto a personal computer or mobile device, make as many copies of the Software as you reasonably need for your own use (this does not include firmware); and (C) permanently transfer all of your rights to use the Grafi.as Services (including but not limited to the Software) to another person, so long as that person also agrees to be bound by this Agreement, and following such transfer you stop using the Grafi.as Services and the Software.
You can find the user documentation for the Software on the “Support” page of the applicable Grafi.as website.
- License Restrictions.
The Software is licensed, not sold, to you. You only have the non-exclusive right to use the Software in accordance with this Agreement. You may not (i) modify, adapt or otherwise create derivative works from the Software, the Grafi.as Services containing the Software or user documentation (except as may be permitted by an applicable open source license) without receiving prior written consent from Grafi.as to make any such modifications: (ii) lease, sublicense, resell, rent, loan, redistribute, or otherwise transfer (except as expressly permitted above), whether for commercial purposes or otherwise, the Software or user documentation; (iii) reverse engineer, disassemble, decrypt or decompile the Grafi.as Services or the Software or otherwise try to reduce the Software to a human-readable form, except where and only to the extent that such activity is permitted by applicable law or where Grafi.as is required to permit such activity under the terms of an applicable open source license; (iv) remove or alter any copyright, trademark or other proprietary notices contained in the Software or user documentation; (v) use the Grafi.as Services, Software or user documentation to develop a competing hardware and/or software Grafi.as Services, or otherwise in any manner not set forth in this Agreement or the user documentation; (vi) if the Software is firmware, copy the firmware (other than one backup copy for archival purposes only), use it on a multi-user system or operate it separately from the Grafi.as Services onto which it is embedded; (vii) use the Software to transmit software viruses or other harmful computer code, files or programs, or to circumvent, disable or otherwise interfere with security-related features of the Software; (viii) use the Software to collect or harvest any third party’s personally identifiable information, to send unauthorized commercial communications or to invade the privacy rights of any third party; or (ix) use the Software for any unlawful purpose, and/or in any manner that breaches this Agreement. All rights not expressly granted to you by Grafi.as under this Agreement are hereby reserved by Grafi.as You will not acquire such rights, whether through estoppel, implication, or otherwise.
- App Software Restrictions.
- Upgrades and Updates.
While Grafi.as is not required to do so, Grafi.as may provide you with upgrades or updates to this Software. This Agreement will govern any upgrades provided by Grafi.as that replace and/or supplement the original firmware and/or Software, unless such upgrade is accompanied by a separate end user license agreement, in which case the terms of that end user license agreement will govern. If you decide not to download and use an upgrade or update provided by Grafi.as, you understand that you could put the Software at risk to serious security threats or cause the Software to become unusable or unstable. Some Grafi.as Services include an auto-update feature, which gives us the ability to make updates automatically. You can change auto-update options by changing your settings within the Grafi.as Services account information. In very limited cases, updates may still be automatically applied, regardless of the auto-update setting. For example, we may provide an automatic update that fixes a security breach or vulnerability to your network. We may also provide you with updated Software data files automatically to benefit you, such as to provide you with updated device information to identify new devices in your network. These data files do not update your firmware, but consist of Software files that are cached on your Grafi.as Services and override older files. By agreeing to this Agreement, you agree to automatic updates.
- Data and Privacy.
- Open Source Software.
You hereby acknowledge that the Software may contain Open Source Software (as defined below). This license does not apply to Open Source Software contained in the Software. Rather, the terms and conditions in the applicable Open Source Software license shall apply to the Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, any Open Source Software license. You acknowledge that the Open Source Software license is solely between you and the applicable licensor of the Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses, if any. License and copyright information for the Open Source Software are disclosed in the Grafi.as Services documentation, within the “Support” tab on Grafi.as websites and within the “Contact Us” section on the app site. Grafi.as His not obligated to provide any maintenance or support for the Open Source Software or any Grafi.as Services Software that has been modified by you pursuant to an Open Source Software license.
“Open Source Software” means any software or software component or technology that is subject to an open source license. Open source licenses are generally licenses that make source code available for free modification and distribution, but can also apply to technology received and distributed solely in object code form. Examples of open source licenses include: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the OpenSSL License; (c) the Mozilla Public License; (d) the Berkeley Software Distribution (BSD) License; and (e) the Apache License.
- Intellectual Property Rights.
All title and intellectual property rights (including without limitation all copyrights, patents, trade secret rights and trademark rights) in and to the Software (including but not limited to any content incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Grafi.as or its suppliers. Therefore, you must treat the Software like any other material protected by laws and treaties relating to international property rights and in accordance with this Agreement.
- Third Party Services and links.
If Grafi.as is the subject of a claim, becomes involved in a legal proceeding, or suffers any economic loss or damage as a result of your violation of this Agreement, to the extent permitted by law, you will be responsible for compensating Grafi.as for the full amount of its loss, as well as any reasonable amounts Grafi.as incurs in lawyers’ fees, expenses and court costs, except to the extent that Grafi.as contributed to the loss or damage.
- Service Agreement.
This Agreement is effective when you click on the “I Accept” button, or when you in any other way use, copy or install the Software, which will constitute your acceptance of, and agreement to, this Agreement. Once accepted, this Agreement remains in effect until terminated. The limited license in this Agreement will be automatically terminated if you fail to comply with any of the terms and conditions in this Agreement. You agree that upon such termination, you will respectively destroy all programs and documentation that relate to the Software, including all copies made or obtained by you, and otherwise cease use of the Software. If the Software has been installed on a personal computer or mobile device, you must uninstall the Software respectively. If the Software is software or firmware embedded on a Grafi.as Services, you must stop using the Grafi.as Services.
- Important Notice Regarding Your Consumer Rights.
SOME COUNTRIES, STATES AND/OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CONDITIONS, WARRANTIES OR GUARANTEES, AND/OR DO NOT ALLOW GRAFI.AS SERVICES OR SERVICES TO BE SOLD WITH NO WARRANTIES OR GUARANTEES. ACCORDINGLY, IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE SECTIONS BELOW ENTITLED “LIMITED WARRANTY AND DISCLAIMER” AND “GENERAL EXCLUSIONS AND LIMITATION OF LIABILITY” MAY NOT APPLY TO YOU. ONLY THOSE EXCLUSIONS AND LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, GRAFI.AS LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE ENFORCEABILITY OF THESE LIMITED WARRANTIES MAY VARY BASED ON THE LOCAL LAWS APPLICABLE TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS DEPENDING ON WHERE YOU LIVE.
THIS AGREEMENT IS NOT INTENDED TO AND DOES NOT: (I) CHANGE OR EXCLUDE ANY STATUTORY CONSUMER RIGHTS THAT CANNOT BE LAWFULLY CHANGED OR EXCLUDED; OR (II) LIMIT OR EXCLUDE ANY RIGHT YOU HAVE AGAINST THE PERSON WHO SOLD THE GRAFI.AS SERVICES TO YOU IF THAT PERSON HAS BREACHED ANY SALES CONTRACT WITH YOU. YOU AGREE TO USE THE SOFTWARE IN COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING LOCAL LAWS OF THE COUNTRY OR REGION IN WHICH YOU LIVE OR IN WHICH YOU DOWNLOAD OR USE THE SOFTWARE.
CERTAIN LEGISLATION, MAY IMPLY WARRANTIES OR CONDITIONS, OR IMPOSE GUARANTEES OR OBLIGATIONS ON GRAFI.AS, WHICH OPERATE TO PROTECT CERTAIN U.K PURCHASERS OF PRODUCTS AND SERVICES IN VARIOUS CIRCUMSTANCES. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONDITION, WARRANTY, GUARANTEE, RIGHT OR REMEDY IMPLIED OR IMPOSED BY ANY APPLICABLE LAWS WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED. If any condition, warranty or guarantee is implied into this Agreement or imposed on Grafi.as under United States Applicable Laws and cannot be excluded, but Grafi.as has a choice of a remedy, then Grafi.as liability for breach of the condition, warranty or guarantee is limited to one or more of the following, at Grafi.as option: (a) in the case of services, the replacement of the services or the supply of equivalent services, the repair of the services or refunding the payment for the services if it would be unreasonable to expect the Grafi.as Services to be repaired; or (b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again. In addition to these remedies a “consumer” may claim for any reasonably foreseeable loss (other than loss or damage through reduction of value of the services) that results from the initial problem.
- Limited Warranty And Disclaimer
Grafi.as warrants that any services on which the Software is provided will be free from defects in materials and workmanship under normal use for 90 days from the date of its original purchase (the “Warranty Period”). If you make an eligible services claim under this warranty during the Warranty Period (the “Limited Warranty”), Grafi.as will honor this warranty by replacing the Software services. To make a claim under this Limited Warranty, send a message about your dissatisfaction or queries along with the sales receipt directly to Grafi.as at the following address:
EXCEPT FOR THIS LIMITED WARRANTY ON SERVICES, SUBJECT TO THESE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY RELATED PROGRAMS AND DOCUMENTATION IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. IN THOSE JURISDICTIONS WHERE IT CAN LAWFULLY DO SO, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GRAFI.AS, ITS RESELLERS AND ITS SUPPLIERS HEREBY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCEPTABLE OR SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, LOSS OF OR DAMAGE TO DATA, LACK OF VIRUSES OR FREE FROM VIRUS OR MALWARE ATTACK, SECURITY, PERFORMANCE, LACK OF NEGLIGENCE, WORKMANLIKE EFFORT, QUIET ENJOYMENT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT YOUR USE OF OR THE PERFORMANCE OF THE SOFTWARE AND RELATED INFORMATION, PROGRAMS AND DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT YOUR USE OF THE SOFTWARE AND RELATED INFORMATION, PROGRAMS AND DOCUMENTATION WILL GENERATE ACCURATE, RELIABLE, TIMELY RESULTS, INFORMATION, MATERIAL OR DATA. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GRAFI.AS, A DEALER, AGENT OR AFFILIATE SHALL CREATE A WARRANTY. To the extent warranties cannot be disclaimed or excluded, they are limited to the duration of the relevant Warranty Period.
YOUR USE OF THE SOFTWARE, GRAFI.ASE SERVICES AND RELATED PROGRAMS AND DOCUMENTATION IS AT YOUR OWN RISK AND DISCRETION. YOU ARE SOLELY RESPONSIBLE FOR (AND GRAFI.AS DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES. IF YOU ARE NOT COMFORTABLE WITH USING THE GRAFI.AS SERVICES, YOU MUST DELETE THE GRAFI.AS APPS TO AND STOP USING THE SERVICES. GRAFI.AS IS NOT RESPONSIBLE FOR (I) YOUR FAILURE TO FOLLOW OUR TERMS AND CONDITIONS, PRECAUTIONS OR ANY OTHER INSTRUCTIONS PROVIDED WITH THE GRAFI.AS SERVICES AND/OR SOFTWARE, (II) YOUR NEGLIGENCE IN USE OF THE GRAFI.AS SERVICES AND/OR SOFTWARE, OR (III) YOUR INTENTIONAL MISUSE OF THE GRAFI.AS SERVICES OR SOFTWARE.
YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE AND ANY RELATED PROGRAMS AND DOCUMENTATION ARE NOT CERTIFIED FOR EMERGENCY RESPONSE OR INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE FAILURE, DELAY OR ERRORS OR INACCURACIES IN THE DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS. YOU UNDERSTAND THAT THE GRAFI.AS SERVICESS AND SOFTWARE ARE NOT PART OF AND DO NOT CONTAIN A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM.
It is your responsibility to back up your system, including without limitation, any material, information or data that you may use or possess in connection with the Grafi.as Services or Software, and Grafi.as shall have no liability for your failure to back up your system or any material, information or data.
- General Exclusions and Limitation Of Liability:
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GRAFI.AS, ITS AFFILIATES, ASSOCIATES, DEALERS, AGENTS OR SUPPLIERS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS AND ASSIGNS BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR REVENUE, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR LOSS OF ABILITY TO USE ANY THIRD PARTY GRAFI.AS SERVICES OR SERVICES, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF GRAFI.AS OR SUCH OTHER ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF GRAFI.AS, ITS AFFILIATES, ASSOCIATES, DEALERS, AGENTS OR SUPPLIERS TO YOU FOR ALL DAMAGES EXCEED THE LESSER OF FIFTY DOLLARS (£50.00) OR THE PRICE YOU PAID FOR THE GRAFI.AS SERVICES, THE SOFTWARE OR THE SERVICES CONTAINING THE SOFTWARE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY WARRANTY OR REMEDY PROVIDED FAILS OF ITS ESSENTIAL PURPOSE. NOTHING IN THIS SECTION IS INTENDED TO LIMIT THE LIABILITY, UNDER APPLICABLE LAW, OF GRAFI.AS IN RELATION TO DEATH OR BODILY INJURIES.
IF YOU LIVE IN THE EUROPEAN UNION, REFERENCES TO “SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES” SHALL MEAN ANY LOSSES WHICH (I) WERE NOT REASONABLY FORESEEABLE BY BOTH PARTIES; (II) WERE KNOWN TO YOU BUT NOT TO US; AND/OR (III) WERE REASONABLY FORESEEABLE BY BOTH PARTIES BUT COULD HAVE BEEN PREVENTED BY YOU SUCH AS, FOR EXAMPLE (BUT WITHOUT LIMITATION), LOSSES CAUSED BY VIRUSES, MALWARE OR OTHER MALICIOUS PROGRAMS, OR LOSS OF OR DAMAGE TO YOUR DATA.
The warranties and remedies set out in this Agreement are exclusive, and, to the extent permitted by law, in lieu of all others oral or written, express or implied.
- Export Control Laws
You agree that the use of the Software is subject to the United State of America and local export control laws and regulations. You represent and warrant that you are not a citizen of an embargoed or “terrorist supporting” country or a prohibited or restricted end user under applicable The United States or local export and anti-terrorism laws, regulations and lists. You agree to strictly comply with all export control laws and regulations and agree not to export, re-export, divert, transfer or disclose any portion of the Software or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
- General Terms.
- Binding Arbitration of All Disputes
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Grafi.as and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
- No Representative Actions
You and Grafi.as agree that any dispute arising out of or related to these Terms or our Services is personal to you and Grafi.as and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
- Governing Law; Injunctive Relief.
THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE UNITED STATE OF AMERICA WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION TO THE RIGHTS AND DUTIES OF THE PARTIES. HOWEVER, WITH RESPECT TO SOFTWARE PROVIDED, IF YOU ARE A CONSUMER AND YOU LIVE IN A COUNTRY WHERE GRAFI.AS MARKETS OR PROMOTES THE SOFTWARE, LOCAL LAW MAY REQUIRE THAT CERTAIN CONSUMER PROTECTION LAWS OF YOUR COUNTRY OF RESIDENCE APPLY TO SOME SECTIONS OF THIS AGREEMENT. IN ADDITION, GRAFI.AS MAY SEEK INJUNCTIVE RELIEF IN ANY COURT HAVING JURISDICTION TO PROTECT ITS INTELLECTUAL PROPERTY RIGHTS. EACH OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF SERVICES AND THE UNITED NATIONS CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF SERVICES IS HEREBY EXPRESSLY EXCLUDED AND WILL NOT APPLY TO THIS AGREEMENT.