Graphdive Terms of Service
These Terms of Service (the “Terms”) represent a legal and binding agreement between you and the organization that you represent (“you”), and GraphDive, Inc., a Delaware corporation (“us,” “we,” or “GraphDive”).
1. THE GRAPHDIVE SERVICES
GraphDive provides information, data analytics, and personalization tools to businesses and individuals through products and services made available on the GraphDive Site, software in the form of widgets, a dashboard and various application programming interfaces (“APIs”). The GraphDive products, services, software, GraphDive Site, and all analysis and results generated from use of such items, are collectively referred to in these Terms as the “Services,” and the software used by GraphDive in connection with the Services (including our widgets, dashboard and API) is collectively referred to in these Terms as the “Software.”
2. LICENSE GRANT
GraphDive grants you a limited, non-exclusive, non-transferable and revocable license to install and use the Software within a single website using a single domain name following your registration of such website and domain name with GraphDive (“Registered Site”), and to access and use the Services and results from such use in connection with such Registered Site, subject to these Terms (including the Use Restrictions and Termination sections below). You may use the Services on multiple Registered Sites; however, your results from the Services will be generated for each Registered Site individually and will not be aggregated by GraphDive.
3. REQUIREMENTS FOR USE OF THE SERVICES
(a) The Services are designed to analyze information and data pertaining to Registered Site users (“Users”) on third party social media services such as Facebook (“Social Media Sites”) and/or generated by Users in the course of their interactions on a Registered Site (collectively, “User Data”). In order for GraphDive to access and analyze User Data from a particular Social Media Site, Users may be required to enable your Registered Site to access such User Data via the “social sign on” or similar functionality provided by that Social Media Site (e.g., using “Facebook Connect”).
(b) In order to use the Services, you must (i) offer the pertinent User token or ID, the User Data, and any initial and incremental data feed in a format authorized by the Services, (ii) implement and maintain your Registered Site, (iii) integrate the Software into your Registered Site in accordance with GraphDive instructions such that the Services function as intended together with your site, (iv) implement and maintain connectivity between your Registered Site and the Services, and (v) collect and feed real-time User events and information to the Services as required.
4. USER DATA
5. YOUR CONTENT
You and your third-party vendors, advertisers and licensors will retain ownership of all trademarks, branding, video, images, text, sound, photographs, graphics, messages, and other content that you upload, post, publish, display, or otherwise use with the Services (“Your Content”). You grant to GraphDive a limited non-exclusive, worldwide, royalty-free license to use, display, modify and redistribute Your Content only as necessary for GraphDive to provide the Services.
6. REGISTRATION AND USE OF YOUR GRAPHDIVE ACCOUNT
(a) All registration information you provide will be accurate, current and complete during your use of the Services. You will promptly update your registration information as needed. You consent and authorize GraphDive to verify your registration information in its discretion.
(b) You will maintain the security of your GraphDive account password, and you are responsible for any consequences of any failure to do so. You will bear all responsibility and liability for all access or use of your GraphDive account, including without limitation any access or use not authorized by you unless such unauthorized access or use is directly caused by GraphDive. You are responsible for ensuring that all use of your GraphDive account complies with all applicable laws, rules and regulations, if any, applicable to your use of the Services.
(c) You are solely responsible for your interactions with your Users in connection with the Services, and your Users’ actions resulting from the Services, and GraphDive will have no liability or responsibility with respect thereto.
(d) You will use commercially reasonable efforts to keep your networks, operating systems and software secure and free from viruses and other contaminants, including use of commercially available firewalls, virus protection tools, and any other industry-standard security practices. You will immediately report any security deficiency with the Service to GraphDive. You are solely responsible for backing up all data and equipment used by you in connection with the Service, including without limitation Your Content.
(g) You will not run any script or use the Services or Software through an application such as a toolbar, plugin, or other executable code that runs on a User’s computer, without the prior written consent of GraphDive.
7. USE RESTRICTIONS
You may not do, or cause, or permit any third party to do, any of the following:
(a) resell, distribute, sublicense, publish, reproduce, rent, share, exploit or transfer the Services, including any content or information derived from the Services, or any use of or access to the Services (whether or not hosted by you), to or for the benefit of any third party or any website, other than your Registered Site(s);
(b) modify, adapt, translate, extend, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services, or any part thereof (except for any Software released by GraphDive under a free and open source (“FOSS”) license), or any other GraphDive technology, content, data, routines, algorithms, methods, ideas, design, user interface techniques, software, materials, or documentation;
(c) use the Services or any portion thereof in a manner that (i) is contrary to any usage instructions or limitations included in the Services instructions or documentation, or otherwise posted on the GraphDive Site, or (ii) exceeds reasonable request volumes or constitutes excessive or abusive usage;
(d) combine or present results from the Services with the results or output from any competitive or similar third party program or service, in a manner which may lead Users to believe that such other results or output was generated by the Services;
(e) attempt to circumvent or disable any security measures in the Services;
(f) use the Services (i) in any manner or for any purpose that violates any law or regulation or any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights to personality; or (ii) to engage in activities that would violate any fiduciary relationship, any applicable local, state, national, or international law, or any regulations having the force of law.
(g) directly or indirectly generate queries, or impressions of or clicks on advertisements, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents);
(h) remove, deface, obscure, or alter GraphDive’s copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Services or Software, any other GraphDive technology, materials or documentation;
(i) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any content transmitted through the Services;
(j) crawl, spider, index or in any non-transitory manner store or cache information obtained from the Services;
(k) attempt to hack into or access without authorization any metrics from the Services that are not specific to your Registered Site(s);
(l) create or attempt to create a substitute or similar service or product through use of or access to the Services or proprietary information related thereto; and/or
(m) disparage GraphDive, knowingly tarnish the name reputation, image or goodwill of GraphDive, or otherwise harm the interests of GraphDive, its licensors or service providers, the GraphDive Site, the Services or other users of the Services or GraphDive Site.
8. PAYMENT TERMS
You agree to pay GraphDive for use of the Services according to the pricing and payment terms specified by GraphDive. GraphDive reserves the right to change its Services pricing at any time. All Services fees are non-cancelable, non-refundable and due and payable in U.S. dollars. You may be required to select a payment plan and provide GraphDive information regarding your credit card or other payment instrument. You represent and warrant to GraphDive that all such information is true and accurate and that you are authorized to use such payment instrument. Interest in the amount of 1.5% per month will be charged on all overdue payments. You will reimburse GraphDive for all expenses incurred in connection with the collection of amounts payable. You will pay GraphDive all sales, use, value added or other taxes, and all duties, tariffs or similar assessments, on the amounts charged in connection with the Services, except for GraphDive’s income or corporate franchise taxes.
9. RIGHTS RESERVED BY GRAPHDIVE
(a) GraphDive exclusively owns all rights, title, and interest in and to the Services, including all intellectual property rights therein. Any comments, suggestions, ideas, feedback or other information about the Services provided by you to GraphDive may be used by GraphDive for any purpose without acknowledgment or compensation to you.
(b) GraphDive reserves all rights in the Services that are not expressly granted in this Agreement, including the right to modify, suspend or discontinue the Services or any portion thereof at any time without notice to you. If GraphDive modifies, suspends or terminates the Services, your sole remedy will be to discontinue use of the Services.
(c) GraphDive reserves the right to modify these Terms at any time without further notice. All modifications to these Terms will be posted on the Site. You are responsible for checking the Site to determine if there have been any changes to the Terms. Your continued use of the Services after any such changes constitutes your acceptance of the modified Terms. If you do not agree with any of the modified Terms, please discontinue all access to or use of the Services.
You may terminate your use of the Services for any reason or for no reason by notifying GraphDive in writing via email, and by removing all GraphDive Software and references to GraphDive and GraphDive marks from your Registered Site(s). GraphDive may suspend or terminate your right to use the Services or any portion thereof, and/or deactivate or delete your account and all related information, at any time and for any reason, without prior notice or liability to you or to any third party. Within two (2) business days of termination, you will remove all Software from your Registered Site(s) and delete any and all references to GraphDive and GraphDive marks from them. Your obligations, representations, and warranties to GraphDive under these Terms will survive any termination.
11. REPRESENTATIONS AND WARRANTIES
You warrant and represent that: (a) all information provided by you to GraphDive in connection with your registration for and use of the Services is true and accurate to the best of your knowledge; (b) you have full power and authority to enter into and perform your obligations under these Terms, and entering into these Terms is not a breach of or contrary to any other agreement or arrangement entered into by you; (c) your Registered Site(s) and Your Content do not and will not: (i) infringe any intellectual property or other rights of any third party, (ii) constitute defamation, slander, libel or obscenity, (iii) result in any consumer fraud, product liability, or breach of contract to which you are a party, or cause injury to any third party, (iv) promote violence or contain hate speech, (v) promote any unlawful activity, or (vi) violate any applicable law, statute, ordinance, or regulation; (d) there are no claims, lawsuits or other legal proceedings pending, or to the best of your knowledge threatened, which may have a material adverse effect on your ability to fulfill your obligations under these Terms; and (e) you will perform all obligations under these Terms, and use the Services, only in accordance with applicable laws and regulations.
12. NO GUARANTEED AVAILABILITY
The Services and Software may be subject to temporary shutdowns for necessary maintenance, updates, or due to causes beyond our reasonable control, and GraphDive will have no liability to you, your customers, or any third party for such temporary shutdowns. GraphDive assumes no responsibility for the availability or lack of availability of your Registered Site. If any unavailability of the Services causes your Registered Site to incur downtime or if you cannot connect to the Services, you may contact GraphDive for assistance in resolving the issue. GraphDive has no obligation to assist you, but may do so in its discretion. You are solely responsible for assisting Users in connection with the Services.
13. NO WARRANTY
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, INCLUDING WITHOUT LIMITATION ANY RELIANCE PLACED BY YOU OR THIRD PARTIES ON THE ACCURACY, COMPLETENESS OR USEFULLNESS OF THE SERVICES RESULTS. THE SERVICES GENERATE SEMANTICALY-DRIVEN RESULTS THAT MAY BE OFFENSIVE TO USERS, AND GRAPHDIVE DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO SCREEN OR EDIT ANY RESULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GRAPHDIVE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. In addition, GRAPHDIVE AND ITS SUPPLIERS make no representation or warranty that the OPERATION OF THE SERVICES will MEET YOUR EXPECTATIONS OR REQUIREMENTS, WILL be UNINTERRUPTED, OR WILL BE error free, or THAT ALL ERRORS WILL BE CORRECTED.
14. INDEMNITY AND RELEASE
(a) You agree to release, indemnify, defend, and hold GraphDive and its affiliates and their officers, employees, directors and agents harmless from any and all liabilities, losses, costs, expenses, claims, lawsuits, actions, proceedings, damages, settlements and judgments, including reasonable attorneys' fees, rights, claims, actions, or injury of any kind (including death), arising out of or relating in any manner to (i) your use of the Services or any results generated from or arising out of such use, regardless of whether such use is in accordance with these Terms; (ii) your acquisition, possession, transfer, or use of any User Data (including without limitation your providing User Data to GraphDive for use with the Services); (iii) any of Your Content, or (iv) any alleged injury or violation to or of any rights of another individual or entity caused by or associated with items (i) through (iii).
(b) If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
15. LIMITATION OF LIABILITY
GRAPHDIVE AND ITS SUPPLIERS WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE, PROFIT, OR DATA, BUSINESS INTERRUPTION, COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE BASED ON, RESULTING FROM OR ARISING OUT OF THESE TERMS AND/OR YOUR USE OR INABILITY TO USE THE SERVICES OR ANY PORTION THEREOF, EVEN IF GRAPHDIVE OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART BY THE SERVICES, BY ANY INTERRUPTION, INACURACY, ERROR OR OMISSION IN THE SERVICES, OR ANY ACT OR OMISSION OF GRAPHDIVE. IN NO EVENT WILL THE LIABILITY OF THE PARTIES IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED THE FEES YOU HAVE PAID GRAPHDIVE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
16. MOBILE DEVICES
You may use the Services through a mobile application at such time as GraphDive makes such use available. To the extent you access the Services through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using the Services may be prohibited or restricted by your carrier, and not all aspects of the Services may work with all carriers or devices. By using the Services via a mobile device, you agree that GraphDive may communicate with you regarding the Services by notifications, text message or other electronic means to your mobile device and that certain information about your usage of the Services on your mobile device may be communicated to GraphDive.
You authorize GraphDive to use your name and logo on the GraphDive Site and/or in GraphDive marketing materials, solely to identify you as a user of the Services. You may, but are not required to, indicate on your Registered Site(s) that you are a Services user. Any other use by either party of the other party’s name or logo must be pre-approved in writing by such other party. You may not use GraphDive’s name or logo to endorse or promote any products.
You acknowledge that your breach of any of the terms and conditions contained herein may cause irreparable harm to GraphDive, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which GraphDive may be legally entitled, GraphDive shall have the right to seek immediate injunctive relief in the event of a breach of such sections by you or any of your officers, employees, consultants, or other agents.
19. THIRD PARTY SITES AND RESOURCES
The Services may provide, or third parties may provide, links or other access to other sites and resources on the Internet. GraphDive has no responsibility for, or control over, and does not endorse, such sites or resources. GraphDive will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, use of or reliance on any content, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that GraphDive is not liable for any loss or claim that you may have against any such third party.
For all purposes of this Agreement, except as explicitly provided herein each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind nor attempt to bind the other to any contract. If any provision of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. No delay or omission on the part of GraphDive in requiring performance by you or in exercising any right hereunder will serve as a waiver of any provision or of any right or rights under these Terms, and a waiver, omission or delay in requiring such performance or exercising any such right on one occasion will not be construed as a bar to or waiver of such performance or right on any future occasion. You may not assign, transfer or delegate these Terms or your right to use the Services on a Registered Site to any third party. GraphDive may assign these Terms at any time with or without notice to you. These Terms will be governed and construed under the laws of the State of California, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any legal action relating to this Agreement will be brought in the state courts located in San Mateo County, California, or federal courts located in San Jose, California, and you agree to the exercise of jurisdiction over you by such courts. GraphDive reserves the right, but has no obligation, to become involved in any way with disputes regarding or relating to the Services between you and any User, or between you and any other user of the Services. Neither party will be liable to the other party by reason of any failure or delay in performance because of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, earthquakes, or internet connectivity or failure issues. These Terms represent the entire understanding of the parties with respect to their subject matter and supersede all prior agreements, negotiations, representations, statements and writings among the parties relating to their subject matter. Purchase orders accepted by GraphDive shall be binding only to the extent they do not conflict with these Terms. Other terms and preprinted terms on or attached to any purchase order shall be void. In the event of any conflict between these Terms and your purchase order, these Terms shall control. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Notices to you may be made via either email or regular mail, or as to matters affecting all Services users by displaying notices or links to notices generally on the Services.
These Terms of Service were last updated on November 1, 2012.