Terms of Use

GRAPHITE NOTE TERMS OF SERVICE

PLEASE CAREFULLY READ THESE TERMS OF USE BEFORE ACCESSING, ACTIVATING OR OTHERWISE USING GRAPHITE NOTE’S WEBSITES AND WEB PAGES AND/OR ITS CLOUD-BASED, NO-CODE PLATFORM REFERRED TO HEREIN AS “GRAPHITE NOTE” OR ANY OF GRAPHITE NOTE’S CLOUD SERVICES.

BY CLICKING THE “I ACCEPT” BUTTON WHEN YOU REGISTER ON GRAPHITE NOTE, OR OTHERWISE BY USING GRAPHITE NOTE’S SERVICES, YOU AGREE THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT FOR YOURSELF OR ON BEHALF OF ANY BUSINESS ENTITY FOR WHICH YOU HAVE REGISTERED AN ACCOUNT.

ON BEHALF OF YOURSELF AND ANY SUCH BUSINESS ENTITY, YOU ALSO AGREE TO BE BOUND BY THESE TERMS OF USE, INCLUDING GRAPHITE NOTE’S PROCESSING AND USE OF DATA COLLECTED THROUGH THE GRAPHITE NOTE SERVICES, AND AGREE TO RECEIVE AND RESPOND ELECTRONICALLY FOR COMMUNICATIONS IN RELATION TO THE SERVICES.

1. Definitions and Construction

1.1. Definitions. The terms “You”, “Your” or “Company” refer to whomever is entering into this Agreement and the company they are representing. Graphite Note shall be referred to as “Graphite Note” throughout the Agreement. Each is a party to this Agreement and together are referred to as the Parties.

Administrative User

Any individual who is an employee or independent contractor of Customer, its Affiliates, or its or their Customer Service Providers, and who is authorised by Customer to use administrative features and functions of the Graphite Note Platform.

Affiliate

Any person, partnership, joint venture, company or other form of venture or enterprise, domestic or foreign, including subsidiaries, which directly or indirectly Control, are Controlled by, or are under common Control with a party.

Control

The possession, directly or indirectly, of the power to direct or cause the direction of management and operating policies through ownership of more than fifty percent of voting or equity securities, contract, voting trust or otherwise.

Customer Application

An application or web-based service developed or used by Customer or its Affiliates, including its APIs, which connects with or provides Customer Data to the Graphite Note Platform. Customer Applications do not include the Graphite Note Platform.

Customer Data

Any data that Customer or its Users input into, or allow to be integrated with, the Graphite Note Platform for Processing as part of the Services, including Personal Data forming part of such data.

Customer Service Provider

A third party to the extent the third party is providing services to Customer.

Documentation

The software, user and administrator documents published by Graphite Note regarding use of the Graphite Note Platform, including additional, updated or revised documentation.

End User

Any individual authorised by Customer to use end-user features and functionality of the Services.

Free Trial

Use of Subscription Services for trial purposes pursuant to a Sales Order that specifies that Customer’s use is for a Free Trial.

Graphite Note Platform

The computer software applications, tools, APIs, connectors, programs, networks and equipment that Graphite Note uses to make Subscription Services available to customers.

Intellectual Property Rights

All trade secrets, patents and patent applications, trademarks, service marks, trade names, copyrights, moral rights, database rights, design rights, know-how, Confidential Information, inventions and equivalent or similar proprietary rights.

Professional Services

Professional services, typically consulting and advice concerning optimum utilisation of Subscription Services, specified in the applicable Sales Order.

Sales Order

A mutually agreed written sales order executed on behalf of Graphite Note and Customer, including exhibits and addenda, describing Subscription Services, support, Professional Services if applicable, fees and special terms.

Services

The Subscription Services and the Professional Services.

Subscription Services

The Graphite Note Platform service offerings to which Customer subscribes, together with applicable support, as specified in the applicable Sales Order and Documentation.

Subscription Term

The meaning ascribed to it in the Sales Order.

User

Any Administrative User or End User.

1.2. Construction. This Agreement applies to the provision of all Services. The Parties may enter into one or more Sales Orders containing additional terms and conditions. Upon execution, each Sales Order is incorporated into this Agreement.

2. Provision and Use of Services; Operational Considerations

2.1. Provision of Subscription Services. During the Subscription Term, Customer may access and use the Graphite Note Platform in accordance with this Agreement. Graphite Note will make the Platform available and provide necessary support.

2.2. Customer’s Account. Customer will designate one or more employees as contacts for management and support of Subscription Services and for establishing and managing Customer’s use of the Services, including authentication credentials. Customer is responsible for maintaining its User base, safeguarding Administrative User credentials and all activities under the Account.

2.3. Customer’s General Responsibilities. Customer and its Users are responsible for obtaining and maintaining Internet access and for the accuracy, quality and integrity of Customer Data. Customer must comply, and ensure that Administrative Users comply, with this Agreement. Customer is responsible for acts and omissions of its Administrative Users relating to this Agreement.

2.4. Customer Application. Customer is solely responsible for development, implementation, operation, support, maintenance and security of each Customer Application.

2.5. Connection to Customer Applications. The Graphite Note Platform includes functionality that can connect with certain Customer Applications through public APIs. Information transmitted to or accessed by Graphite Note from a Customer Application is Customer Data and is subject to the data-protection provisions of this Agreement while within Graphite Note’s possession or control.

3. License Grants and Proprietary Rights

3.1. License by Graphite Note. Subject to this Agreement, Graphite Note grants Customer a non-exclusive, non-transferable, royalty-free, worldwide license during the Subscription Term to access and use the Graphite Note Platform in accordance with Documentation and to use Documentation solely for Customer’s ordinary business operations. Graphite Note reserves all rights not expressly granted.

3.2. License by Customer. Customer grants Graphite Note a non-exclusive, non-transferable, royalty-free license to use Customer Data solely as necessary to perform Services and as otherwise agreed in writing. Customer reserves all other rights.

3.3. Ownership. Customer retains its rights, title and interest in Customer Data and Customer Confidential Information. Graphite Note retains all rights, title and interest in Subscription Services, Graphite Note Confidential Information, and enhancements, improvements or derivative works of Graphite Note intellectual property.

3.4. Restrictions. Except where permitted by law or required by Graphite Note, Customer may not reverse assemble, reverse engineer, decompile or attempt to derive source code from the Graphite Note Platform; reproduce, modify or prepare derivative works of the Platform; or share, rent or lease Subscription Services or operate them as a standalone timesharing, service-bureau or similar offering.

4. Compensation

4.1. Subscription Plans. Customer’s subscription plan is specified in the applicable Sales Order and may not be reduced during the Subscription Term.

4.2. Payment of Services Fees. Customer will pay fees specified in the Sales Order. Graphite Note invoices in advance. Unless otherwise specified, payments are due within thirty days of receipt of invoice and fees are stated and payable in Euros.

4.3. Taxes. Customer is responsible for applicable sales, value-added, use and similar taxes, customs and import duties other than taxes based on Graphite Note’s personal property ownership or net income. Fees exclude taxes unless expressly specified otherwise.

4.4. Withholding. Where Customer is required to withhold taxes from a payment to Graphite Note, Customer must remit them to the proper authority and provide official documentation or tax receipts as required. Payments will be adjusted where required so that Graphite Note receives the full fees set out in the Sales Order.

5. Warranties

5.1. Performance. During the Subscription Term, the Graphite Note Platform in the form provided will conform in all material respects to applicable specifications in the Documentation. Graphite Note will use commercially reasonable efforts consistent with industry practice to protect against malicious code and will comply with laws applicable to Graphite Note and its provision of Services.

5.2. Performance Remedy. Where the Platform materially fails to conform to the performance warranty and Customer provides timely written notice, Graphite Note will repair or replace the non-conforming Platform, or if unable to correct it within thirty days, Customer may terminate affected Subscription Services and receive a pro-rata refund of prepaid fees applicable to the unutilised portion.

5.3. Infringement Remedy. Customer’s remedies for infringement are its defence and indemnification rights and applicable termination rights under this Agreement.

5.4. Bugs and Scope. Graphite Note does not warrant that the Platform or Services are completely free from bugs, errors or omissions or will ensure complete security. Performance warranties do not apply to a Free Trial.

5.5. Disclaimer. To the maximum extent permitted by applicable law, except as specifically warranted in this Agreement, each party disclaims implied warranties including merchantability, fitness for a particular purpose, non-infringement and warranties arising from course of performance, dealing or usage of trade.

6. Confidential Information

6.1. Restrictions on Use and Disclosure. Neither Graphite Note nor Customer will disclose to any third party proprietary or confidential information provided by the other, or use it except under this Agreement. Each party will take reasonable precautions to protect the other’s Confidential Information and is responsible for breaches caused by its Affiliates or service providers.

Graphite Note Confidential Information includes information regarding the Graphite Note Platform, processes, methods, techniques and know-how relating to artificial intelligence and machine learning, Documentation, roadmaps, pricing, marketing and business plans, financial information, information security information and Personal Data of Graphite Note personnel.

Customer Confidential Information includes information input into or integrated with the Graphite Note Platform, proprietary workflows and processes, architecture, marketing and business plans, financial and information-security information, supplier information and Personal Data of Customer personnel.

6.2. Exclusions. Confidential Information does not include information that enters the public domain without breach, is rightfully received from a third party without confidentiality restrictions, was previously known without restriction, or is independently developed without use of the other party’s Confidential Information.

6.3. Disclosure Required by Law. Where law, regulation or judicial or administrative order requires disclosure, the receiving party will, where permitted, notify the disclosing party and reasonably cooperate in seeking protection.

6.4. Independent Development. Confidentiality obligations do not limit either party’s right to independently develop or acquire products, software or services without use of the other party’s Confidential Information.

7. Data Protection

7.1. Regulatory Issues. Customer selects the Personal Data it chooses to Process using the Graphite Note Platform and is responsible for compliance with legal or regulatory restrictions applicable to the data it chooses to Process. Subject to Customer’s legal-basis assurance, Graphite Note will comply with applicable EU privacy laws governing Customer Personal Data in its possession or control.

7.1.2. ePHI. If Customer is subject to US healthcare data-protection laws such as HIPAA, Customer may not use the Platform to Process electronic Protected Health Information unless the applicable Sales Order specifies otherwise.

7.1.3. Data Consents. Customer is responsible for obtaining all necessary consents, licenses, approvals or other valid legal basis for Processing Personal Data provided by Customer or its Users.

7.1.4. Regulator Inquiries and Court Orders. If a regulator, subpoena, warrant or court or administrative order requires Graphite Note to disclose Customer Data, Graphite Note will notify Customer unless prohibited by law and will reasonably cooperate with Customer’s response except where otherwise required.

7.2. Instructions. Graphite Note will Process Customer Data only as necessary to provide Services and in accordance with Customer instructions embodied in this Agreement and Customer’s use of Platform features.

7.3. Customer Data Input or Import Responsibilities. Customer must not import malicious code; regulated payment-card data or financial credentials; HIPAA-regulated information; government identification numbers; special-category or criminal-offence personal data; personal data of individuals under 16; information protected by certain US financial or child-privacy laws; or content violating third-party intellectual-property rights, except where permitted under the Agreement and applicable law.

7.4. Information Security. Graphite Note will implement and maintain commercially reasonable technical and organisational measures designed to protect the security and confidentiality of Customer Data, protect against anticipated threats, unauthorised access and use, and support secure return or disposal.

7.5. Data Export, Retention, Deletion and Return. Customer may export Customer Data during the Subscription Term using then-current Platform functionality. Graphite Note may retain Customer Data in automated backup copies for up to 18 months, subject to the Agreement while retained.

7.6. Sub-Processors. Customer consents to Graphite Note’s use of sub-processors to provide aspects of Subscription Services. Graphite Note will require sub-processors to comply with materially protective terms applicable to the services they provide.

7.7. Access by Graphite Note Personnel. Graphite Note will ensure personnel access Personal Data only when authorised and in accordance with applicable controls and confidentiality obligations.

7.8. User Requests. If a User asks Graphite Note for information relating to Processing of Personal Data or to make changes, Graphite Note will notify Customer unless otherwise required by law. Customer may make changes using Platform functionality.

7.9. Breach Notification. Graphite Note will notify Customer of a confirmed Security Breach affecting Customer Data within two working days of confirmation of the nature and extent or when required by applicable law, whichever is earlier, and will reasonably cooperate in investigation and mitigation.

7.10. Territorial Restrictions. Graphite Note will Process Customer Data within AWS platform infrastructure located in the European Union. Graphite Note personnel may access Customer Data from other locations for purposes of providing Services subject to applicable controls.

8. Term and Termination

8.1. General. This Agreement continues until terminated in accordance with its terms.

8.2. Termination on Breach. A non-breaching party may terminate this Agreement or an affected Sales Order for material breach following written notice and a thirty-day cure period. Failure to pay overdue fees within thirty days after notice constitutes material breach. Graphite Note may suspend affected Services after further notice where an uncured material breach continues.

8.3. Termination Without Cause. Either party may terminate the Agreement without cause by providing at least one month’s written notice. Either party may terminate a Free Trial at any time.

8.4. Subscription Term and Renewal. Each Subscription Term starts on the Subscription Start Date and continues for the period specified in the Sales Order or, if not specified, one year. The parties may renew by agreement. Continued use without formal renewal may result in renewal until formally renewed or cancelled.

8.5. Fulfilment of Obligations on Termination. Except as specified in the Agreement, termination does not entitle Customer to a refund or relief from fees paid or payable.

8.6. Post-Termination Obligations. Each party must cease use of, and return or destroy, the other party’s Confidential Information following termination, subject to customary backup and archival processes.

8.7. Suspension – Critical Threats. Graphite Note may suspend use of the Platform where Customer or User use poses an imminent threat to security, integrity or availability and the threat cannot be immediately resolved.

8.8. Survival. Provisions concerning definitions, ownership, restrictions, taxes, confidentiality, data protection, post-termination obligations, indemnification, liability and other provisions intended by their nature to survive will survive expiration or termination.

9. Indemnification

9.1. Graphite Note Infringement Indemnification. Where a third party claims that Subscription Services infringe specified third-party intellectual-property rights, Graphite Note will, subject to the indemnification conditions in the Agreement, defend Customer and indemnify Customer against specified damages, fines and penalties finally awarded or agreed in an approved settlement.

If affected Subscription Services become or are likely to become subject to an infringement claim, Graphite Note may procure the right to continue use, replace or modify affected Services to avoid infringement, or terminate affected Services and refund the applicable pro-rata amount of prepaid subscription fees.

Graphite Note has no obligation for claims based on use outside applicable license rights, combinations with products, equipment, software, services or data not supplied by Graphite Note where the infringement would not otherwise have occurred, or Customer Data.

9.2. Customer Consent Indemnification. Where a third party claims non-conformance with Customer’s legal-basis assurance, Customer will, subject to the Agreement’s indemnification conditions, defend and indemnify Graphite Note against specified resulting damages, fines and penalties.

10. Limitations and Exclusions of Liability

10.1. Exclusion of Certain Claims. Subject to the exceptions in the Agreement, neither party will be liable to the other or a third party for consequential, indirect, special, incidental, punitive or exemplary damages arising from performance or non-performance of the Agreement or related claims.

10.2. Limitation of Liability. Subject to stated exceptions, neither party’s maximum aggregate liability arising out of the Agreement or a related agreement will exceed the fees paid to Graphite Note under the Sales Order giving rise to the claim during the twelve months immediately preceding the first assertion of the claim.

10.3. Exceptions. The exclusions and limitations do not apply to wilful misconduct or gross negligence, infringement or misappropriation of the other party’s Intellectual Property Rights, or liability that may not be limited by applicable law. Additional exceptions apply to indemnification obligations, Customer payment obligations and confidentiality or data-protection obligations as specified in the Agreement.

10.4. Free Trial. With respect to any Free Trial, Graphite Note’s aggregate liability will not exceed one hundred Euros.

10.5. General. The parties agree that the exclusions and limitations apply even if remedies are insufficient or fail of their essential purpose. Neither party may commence an action or proceeding under the Agreement more than two years after occurrence of the applicable cause of action.

11. Notices

11.1. Format. Notices required under the Agreement must be in writing and delivered by hand, email, first-class prepaid mail or recorded delivery mail.

11.2. Graphite Note. Notices for Graphite Note shall be sent to hello@graphite-note.com or Graphite Note Ltd, 4 Loreto Avenue, Loreto Road, Muckross, Killarney, Co. Kerry, V93T9C6, Ireland, Attn: Legal.

11.3. Customer. Notices for Customer will be sent to the email address of the user who created the account.

11.4. Time. Notice is deemed given when received if delivered by hand or email, the next business day after sending by first-class prepaid or recorded delivery mail, or five business days following postage if sent internationally.

12. Miscellaneous Provisions

12.1. Affiliates. The Agreement sets general terms under which Graphite Note provides Services to Customer and Affiliates. A Customer Affiliate executing a Sales Order is treated as Customer for that Sales Order.

12.2. Publicity; References. Unless otherwise specified in a Sales Order, Graphite Note may refer to Customer as a customer and use Customer’s logo in that context subject to applicable trademark requirements. Press releases, joint announcements, reference calls or site visits require the approvals specified in the Agreement.

12.3. Compliance with Laws. Each party will comply with laws and regulations applicable to it, including export-control laws. Each party represents that it and relevant Affiliates, users, officers and directors are not prohibited persons or entities under applicable sanctions or export-control regimes.

12.4. Equitable Relief. Each party acknowledges that damages may be inadequate for breaches involving Intellectual Property Rights, Confidential Information or Personal Data and that injunctive relief may be sought in a court of competent jurisdiction.

12.5. Force Majeure. A party whose performance is restricted by causes beyond its reasonable control that could not have been avoided through reasonable diligence may be excused from affected performance while the restriction continues, except for payment obligations. If such restriction continues for more than thirty days, the other party may terminate affected Services without liability.

12.6. Service Enhancement Analysis. Graphite Note may use Subscription Services usage history, statistics and telemetry for internal analytical purposes related to provision, improvement and enhancement of Services. Graphite Note may publish aggregated and anonymised information that contains no Personal Data.

12.7. Captions and Headings. Captions and headings are for convenience and do not limit the scope or intent of a provision.

12.8. Severability; Invalidity. If a provision is held invalid, the remainder remains effective and an overly broad provision will be interpreted only as broadly as enforceable.

12.9. Waiver. A waiver or consent is binding only when in writing and signed by the relevant party and applies only to the specific instance and purpose for which given.

12.10. Third-Party Beneficiaries. Except as expressly stated, the Agreement does not create third-party beneficiary rights.

12.11. Assignment. Neither party may assign rights or obligations without prior written consent except, subject to applicable restrictions, to an Affiliate or an entity into or with which it is merged or that acquires substantially all its assets. The Agreement binds permitted successors and assigns.

12.12. Governing Law. The Agreement is governed by the laws of the Republic of Ireland and the courts of Ireland have sole jurisdiction in relation to it.

12.13. Entire Agreement; Amendments. The Agreement constitutes the entire agreement and understanding between the parties regarding its subject matter and supersedes prior communications and understandings. Amendments must be in writing and executed by both parties. In a conflict between the Agreement and a Sales Order, the Agreement prevails unless otherwise validly agreed.

12.14. Counterparts. Sales Orders, the Agreement and amendments may be executed in counterparts which together constitute a single agreement.