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GrataPro Subscription Services Terms

GrataPro Subscription Services Terms

Last Updated: October 25, 2021

This GrataPro Subscription Services Terms, including all Order Forms, addenda, exhibits and schedules hereto (collectively, this “Agreement”),  is between Fair People For People, Inc., with offices located at 3601 Beverly Drive, Dallas, Texas 75205 (“GrataPro”) and the customer (“Customer”) whose name appears on the Order Form regarding the GrataPro Services, and is effective as of the Effective Date set forth on the Order Form (“Effective Date”). GrataPro and Customer are each referred to individually as a “party,” and collectively as the “parties.”

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE GRATAPRO SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE GRATAPRO SERVICES.

Customer represents and warrants that: (a) Customer is of legal age to form a binding contract; (b) has the right, authority and capacity to agree to and abide by this Agreement; and (c) is not a person barred from using the GrataPro Services under the laws of any applicable jurisdiction.

This Agreement governs GrataPro’s provision of the GrataPro Services and Customer’s access to and use of the GrataPro Services. This Agreement contains general terms and conditions applicable to all such GrataPro Services.  Order Forms contain additional terms specific to the GrataPro provided thereunder.  The parties agree as follows:

1.  DEFINITIONS.

Customer Data” means the raw data Customer uploads or submits to GrataPro, including without limitation ratings, reviews, photos, videos, compliments, invitations, check-ins, votes, friending and following activity, direct messages, and information that Customer contributes to its user profile or suggests for a business page, and the resulting data from the processing of such raw data using the GrataPro Services.

Customer Service Provider Information” means any and all data or content made available by Customer in connection with the identification of Customer’s employees or other service providers.

GrataPro Services” means any and all of the services, software and other offerings provided by GrataPro pursuant to this Agreement, including the SaaS Platform, the offerings provided through https://www.grata.local, any mobile applications and APIs provided by GrataPro, and all such services and software labeled as alpha, beta, pre-release, trial, preview or otherwise. GrataPro Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, sample data sets, and hardware devices as provided by GrataPro.

GrataPro Data” means the data GrataPro makes available on or through the GrataPro Services, including any data licensed from a third party, but excluding Customer Data.

Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to GrataPro related to the GrataPro Services.

Internal Purposes” means internal business use within Customer’s systems, networks, and devices (“Customer Environment”), to recognize and reward Customer’s employees or service providers and evaluation of the GrataPro Services in order to provide Feedback to GrataPro.

 “Order Form” means each mutually agreed upon order on GrataPro’s Order Form template that specifies the GrataPro Services, including the type or quantity of items, including the number of seats or users, the fees for such items and any additional terms applicable to the use of such items.

SaaS Platform” means everything at https://www.grata.local, and related services located in the https://www.grata.local domain and subdomains, including software, code, algorithms, hosted services and web interfaces.

User” is a distinct named user permitted by Customer to access the GrataPro Services defined by an email address and tied to a specific Customer billing account. Customer is responsible for all use of the GrataPro Services by Users.

2.  LICENSE GRANT.

Customer’s use of the GrataPro Services is subject to and governed by the terms and conditions in this Agreement, including those in the applicable Order Form. In the event of a conflict between the terms in an Order Form and this Agreement, the terms in the Order Form shall control with respect the GrataPro Services provided under such Order Form. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement and those in the applicable Order Form, GrataPro grants Customer a non-exclusive, non-sublicensable, non-transferable, revocable, limited license during the Term to use the GrataPro Services in a secure location, only for the Internal Purposes. Customer may only access and use the GrataPro Data solely as necessary to enable Customer’s permitted use of the GrataPro Services as set forth herein.

By accessing or using the GrataPro Service, Customer consents to receive communications from other users and GrataPro through the GrataPro Service, or through any other means such as emails, push notifications, text messages (including SMS and MMS), and phone calls. Customer further understands that communications may be sent using an automatic telephone dialing system, and that Customer may be charged by its phone carrier for certain communications such as SMS messages or phone calls. Customer agree to notify GrataPro immediately if the phone number(s) Customer has provided to GrataPro have been changed or disconnected. Please note that any communications, including phone calls, with GrataPro or made through the GrataPro Service may be monitored and recorded for quality purposes.

3.  LICENSE RESTRICTIONS.

a.         Restrictions.  Except as expressly authorized in this Agreement or by GrataPro, Customer will not, and will not permit any third party to: (i) access or use the GrataPro Services for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the GrataPro Services (except as required to run the GrataPro Services and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the GrataPro Services; (iv) rent, lease, loan, resell, transfer, sublicense, display or distribute the GrataPro Services to any third party; (v) use or offer any functionality of the GrataPro Services on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet “links” to the GrataPro Services, or “frame” or “mirror” the GrataPro Services on any other server, or wireless or Internet-based device; (vi) decompile, disassemble, translate or reverse-engineer the GrataPro Services or otherwise attempt to derive the GrataPro Services source code, algorithms, methods or techniques used or embodied in the GrataPro Services; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the GrataPro Services, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the GrataPro Services; (ix) interfere with or disrupt servers or networks connected to any website through which the GrataPro Services provided; (x) use the GrataPro Services to collect or store personal data about any person or entity; (xi) use the GrataPro Services to build a similar or competitive product or service; or (xii) use the GrataPro Services for any illegal, unauthorized or otherwise improper purposes.

In addition to the foregoing, Customer may not: (1) use another user’s account, (2) misrepresent itself or its employees or independent contractors or their qualifications on the GrataPro Services, (3) use the GrataPro Services in any manner that circumvents Customer’s obligation to pay GrataPro to use and access the GrataPro Services, (4) notwithstanding anything to the contrary contained in this Agreement, “sell” any personally identifiable data (as that term is defined by the California Consumer Privacy Act), including Customer Service Provider Information, to any party other than GrataPro, (5) take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful content (including, without limitation, text, graphics, images, information or other materials, including but not limited to, profile information, reviews, qualifications and calendar information to or through the GrataPro Services, including such content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory, or that advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law, (6) submit Customer Data or other content that damages the experience of any user including, but not limited to, using a profile page or user name to make promotions or advertise Customer’s services or products, (7) take any action that may undermine the efficacy or accuracy of reviews or rating systems, or (8) attempt to indirectly undertake any of the foregoing.

b.         Other Parties.  Any employee, consultant, contractor or agent hired to perform services for Customer may operate the GrataPro Services on Customer’s behalf solely under these terms and conditions, provided that: (i) Customer is responsible for ensuring that any such party agrees in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Customer; (ii) such use is only in connection with Customer’s Internal Purposes; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (iv) Customer remain fully responsible and liable for any and all acts or omissions by such third parties related to this Agreement.

c.         Immediate Termination.  Any violation of this Section 3 by Customer shall be a material breach of this Agreement and GrataPro may immediately terminate this Agreement without notice.

4.  CONFIDENTIALITY.

a.         Definition.Confidential Information” means information that either: (i) is designated as confidential by the Discloser at the time of disclosure; or (ii) would reasonably be understood by the Recipient, given the nature of the information or the circumstances surrounding its disclosure, to be confidential, including without limitation, Discloser’s product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date. Confidential Information of GrataPro also includes the GrataPro Services and the existence and terms and conditions of this Agreement.

b.         Use of Confidential Information. A party which receives Confidential Information under this Agreement (“Recipient”) may not use the Confidential Information from the party which discloses Confidential Information under this Agreement (“Discloser”) in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement.

c.         Disclosure of Confidential Information. Recipient will: (i) hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own Confidential Information); and (ii) not divulge any Confidential Information to any third party (other than to employees or contractors as set forth below). Any employee or contractor given access to any Confidential Information must have a legitimate “need to know” such Confidential Information for use specified in Section 2 and Recipient will remain responsible and liable for each such person’s compliance with this Agreement.

d.         Confidentiality Period. Irrespective of any termination of this Agreement, Recipient’s obligations with respect to Confidential Information under this Agreement expire 5 years from the date of receipt of the Confidential Information (except with respect to any trade secrets and Data where such obligations will be perpetual).

e.         Exclusions. This Agreement imposes no obligations with respect to information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or (d) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order, provided Recipient makes reasonable efforts to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order, and has allowed Discloser to participate in the proceeding.

f.          Return or Destruction of Confidential Information. Upon termination of this Agreement or written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within seven (7) business days of such request or termination.

5.  TERM AND TERMINATION.

a.         Term. This Agreement will be effective from the earlier of (i) the effective date on the order form, and (ii) the date on which Customer first registered to use the GrataPro Services, and shall continue until terminated, as set forth below (the “Term”).

b.         Termination. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination.

c.         Effect of Termination.  Immediately upon termination, (i) all Order Forms and licenses granted under this Agreement will immediately terminate and Customer will immediately cease all use of the GrataPro Services; (ii) Customer will destroy the GrataPro Services in its possession, or upon request by GrataPro, return to GrataPro the Confidential Information that is in its possession or control; and (iii) any and all of Customer’s payment obligations under each Order Form will immediately become due. Upon GrataPro’s request, Customer will certify in writing that Customer has returned or destroyed all copies of GrataPro’s Confidential Information. Sections 1, 3 – 12, and 14 – 16, will survive termination of this Agreement. Neither party shall be under any obligation to enter into an agreement after termination or expiration of this Agreement.

d.         Suspension.  GrataPro reserves the right at any time to modify, suspend, or discontinue the GrataPro Services (or any portion thereof) with or without notice, and GrataPro shall not be liable to Customer or any third party for any such modification, suspension or discontinuance.

6.  OWNERSHIP.

The GrataPro Services are licensed, not sold, and GrataPro, its suppliers or its licensors, retains and reserves all rights not expressly granted in this Agreement. GrataPro, its suppliers or its licensors own all worldwide right, title and interest in and to the GrataPro Services, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing (collectively, “Intellectual Property Rights”). The GrataPro Services is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions.

7. FEES.

a.        Fees and Expenses.  Customer shall pay all agreed upon fees for the GrataPro Services as set forth in the applicable Order Form (“Fees”) and in accordance with terms set forth in such Order Form..

b.         Payment Terms. Customer will pay Fees 30 days after the invoice date.  GrataPro shall email invoices to Customer within two (2) business days of the date of the invoice. Customer shall provide GrataPro with complete and accurate billing contact information including a valid email address. All payments to GrataPro are non-refundable except as otherwise expressly provided in the applicable Order Form.  All payments will be made in United States dollars via electric funds transfer, as per the instructions of GrataPro. GrataPro may invoice parts of an Order Form separately or all in one invoice. Any discounts, interests and taxes invoiced to an Order Form shall be allocated equally to each GrataPro Service and licenses provided under such Order Form.

c.         Late Payments.  If Customer fails to pay any past due invoice, GrataPro may revoke or suspend the GrataPro Services until such time as Customer brings its account completely current.  GrataPro may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.  If Customer is delinquent in its payments for two (2) consecutive months, GrataPro may, upon written notice to Customer, modify the payment terms to require full pre-payment of any or all Order Forms (both currently contracted and in the future), or require other assurances to secure Customer’s payment obligations hereunder.

d.         Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the GrataPro Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on GrataPro’s net income, and Customer shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts.  If Customer is legally required to withhold any amounts to be paid to GrataPro, Customer will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to GrataPro on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit GrataPro to establish GrataPro’s right to a credit for such taxes against GrataPro’s income tax liability.  Customer shall provide GrataPro with such assistance as GrataPro shall reasonably request in connection with any application by GrataPro to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.

e.         Gratuities. In the event of an option for Customer to disable any tipping functionalities in the GrataPro Services, Customer shall be solely responsible for any and all such functionality disabling. GrataPro shall not be responsible for any gratuities paid to any of Customer’s employees or service providers and Customer shall be solely and exclusively responsible for any and all communications, disputes, complaints or similar arising from any gratuities paid in connection with Customer’s profile or its employees or services providers.

8.  FEEDBACK.

Customer agrees to provide GrataPro with Feedback. GrataPro, in its sole discretion, may or may not respond to Customer’s Feedback or promise to address all of Customer’s Feedback in the development of future features or functionalities of the GrataPro Services or any related or subsequent versions of such GrataPro Services. Customer assigns, at no charge, all rights, title and interests in Feedback to GrataPro, and agrees that GrataPro is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer. Customer warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Customer has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Customer). Customer further warrants that its Feedback is not subject to any license terms that would purport to require GrataPro to comply with any additional obligations with respect to any GrataPro Services that incorporates Customer’s Feedback.

9.  DATA.

a.         Data Processing. Customer agrees that it hereby assigns, to the fullest extent permitted by applicable law, to GrataPro, or its designee, all of Customer’s right, title, and interest in and to any and all Customer Data. To the extent not permitted by law, (i) GrataPro shall process and use any personal data that Customer provides in accordance with the GrataPro Privacy Policy, located at https://www.grata.local/privacy-policy, (ii) GrataPro will maintain a security program materially in accordance with industry standards that is designed to protect the security, confidentiality and integrity of the Customer Data, (iii) Customer hereby grants GrataPro a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Customer Data for the purpose of providing and improving the GrataPro Services, including the rights to extract, compile, aggregate, synthesize, use and otherwise analyze all or any portion of the Customer Data, and (iv) GrataPro may use, publish, share, distribute, or disclose such Customer Data and the Customer Service Provider Information on an aggregate basis or in a de-identified manner that does not allow personal data to be separated from the aggregate data and identified as originating from Customer. 

b.         Data Warranty and Obligations.  Customer represents, warrants and agrees that the  Customer has all rights to provide the Customer Data and any Customer Service Provider Information it provides and other materials that Customer provides or makes available to GrataPro. Customer acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its initial use and distribution of all Customer Data and Customer Service Provider Information; (ii) under no circumstances will GrataPro be liable in any way for the content of any Customer Data prior to its assignment to GrataPro, including, but not limited to, any errors or omissions in any Customer Data, or any loss or damages or any kind incurred as a result of Customer’s use, deletion, modification, or correction of any Customer Data; and (iii) Customer is solely and entirely responsible for all Customer Data and Customer Service Provider Information it provides or makes available through the GrataPro Services. Customer has full discretion and control on how to store, protect, remove or delete any Customer Data or Customer Service Provider Information on the GrataPro Services and on its own internal systems and GrataPro shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Customer Data or and Customer Service Provider Information. Customer shall at all times comply with applicable laws, including laws relating to data privacy and storage applicable to Customer.

10. WARRANTY.

a.         Mutual Representations and Warranties.  Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.

b.         Customer Representations and Warranties.  Customer represents and warrants that Customer, and the employees, agents and contractors, who may perform work for Customer and may be listed on the GrataPro Services, are properly and fully qualified and experienced in relation to the specific job they are performing on behalf of Customer. GrataPro, as permitted by applicable laws, may obtain reports regarding Customer and/or its employees, agents and contractors, which may include license and certification information, bond information, sex offender registration or criminal convictions and GrataPro may limit, block, suspend, deactivate or cancel Customer’s, account based on the results of such checks.

c.         Disclaimer.  EXCEPT AS SET FORTH IN SECTION 10.a., GRATAPRO DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW. GRATAPRO SPECIFICALLY DOES NOT WARRANT THAT THE GRATAPRO SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE GRATAPRO SERVICES WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CUSTOMER PROVIDES THE DATA ON AN “AS IS” BASIS AND PROVIDES NO GUARANTEE OF THE ACCURACY OF THE DATA PROVIDED TO GRATAPRO. GRATAPRO IS NOT OBLIGATED TO SUPPORT, UPDATE OR UPGRADE THE GRATAPRO SERVICES.

d.         Beta Disclaimer.  ALL GRATAPRO SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND CUSTOMER’S USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK. GrataPro has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. GrataPro does not assume any obligation to update any Beta Services. In addition, any information about GrataPro’s roadmap outlines GrataPro’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. GrataPro undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the GrataPro Services. Customer expressly acknowledges that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by GrataPro. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.

11. INDEMNIFICATION.

a.        Claims Against Customer.  GrataPro will defend, at its own expense, and hold Customer harmless against any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action arises from an allegation that the GrataPro Services, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party (“Customer Claim”), and GrataPro will indemnify Customer from liability incurred by Customer to the extent arising from such Customer Claim. If GrataPro receives prompt notice of a Customer Claim that, in GrataPro’s reasonable opinion, is likely to result in an adverse ruling, then GrataPro may (i) obtain a right for Customer to continue using the GrataPro Services at issue; (ii) modify such GrataPro Services to make it non-infringing; (iii) replace such GrataPro Services with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing GrataPro Services.

b.         GrataPro Indemnity Limits.  Notwithstanding the foregoing, GrataPro will have no obligation under Section 11.a. or otherwise with respect to any infringement claim based upon:  (i) any use of the GrataPro Services not expressly permitted under this Agreement; (ii) any use of the GrataPro Services in combination with products, equipment, software, or data not made available by GrataPro if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of the GrataPro Services by any person other than GrataPro or its authorized agents or subcontractors (collectively, “Excluded Claims”).  GrataPro will have no obligation under Section 11.a. or otherwise with respect to any claim based upon the use by Customer of any Data uploaded or accessed through the GrataPro Services to the extent such claim is not based on the GrataPro Services itself.  Section 11.a. states GrataPro’s sole liability and Customer’s exclusive remedy for all third party claims.

c.         Claims Against GrataProCustomer will defend, at its own expense, and hold GrataPro harmless against any claim, suit or action against GrataPro brought by a third party to the extent that such claim, suit or action arises from (i) Customer’s failure to comply with or violation of any applicable law or regulation, (ii) Customer’s infringement of any third party’s Intellectual Property Right, (iii) Customer’s use of any Customer Data or Customer Service Provider Information, (iv) Customer’s products or services, (v) Customer’s use of the functionality to disable gratuities in the GrataPro Services, (vi) Customer’s use of Third Party Services, and (vii) Excluded Claims (each, a “GrataPro Claim”), and Customer will indemnify GrataPro harmless from liability incurred by GrataPro that is specifically attributable to such GrataPro Claim or those costs and damages agreed to in a monetary settlement of such GrataPro Claim.

d.         Procedure. The foregoing obligations are conditioned on the party seeking indemnification:  (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.

e. Third Party Dealings. The GrataPro Services may include or provide access to third party products, services, content or offerings, including advertising for such (“Third Party Services”). Customer acknowledges that different terms of use and privacy policies may apply to Customer’s use of such Third Party Services and that terms and policies are solely between Customer and such third party. Customer agrees that GrataPro makes no representations with respect to and does not endorse and is not responsible or liable for any issues related to Third Party Services.

12.  LIMITATION OF LIABILITY.

a.        IN NO EVENT WILL GRATAPRO BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, DATA, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE GRATAPRO SERVICES. WITHOUT LIMITING THE FOREGOING, GRATAPRO WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE GRATAPRO SERVICES, ITS FUNCTIONS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE GRATAPRO SERVICES. GRATAPRO’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDER FORMS, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).

b.         THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.  THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13.  COMPLIANCE WITH LAWS.

Customer will comply fully with all applicable laws, including all applicable laws relating to bribery or corruption, and export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the GrataPro Services. Customer represents and warrants that it is not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further represents and warrants that it shall not export, re-export, ship, or transfer the GrataPro Services to any restricted countries or restricted end users or use the GrataPro Services in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Customer understands that the requirements and restrictions of the Export Laws may vary depending on the specific GrataPro Services and may change over time, and that, to determine the precise controls applicable to the GrataPro Services, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.

14.  CHOICE OF LAW.

This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction.  The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.

15.  BINDING ARBITRATION AND CLASS ACTION WAIVER

a.         ALL CLAIMS (AS DEFINED ABOVE) SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

b.         The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Customer agrees that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

c.         WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. CUSTOMER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

d.         Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Confidential Information or Intellectual Property Rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.

e.         If GrataPro implements any material change to this Section 15, such change shall not apply to any claim for which Customer provided written notice to GrataPro before the implementation of the change. The prevailing party shall recover its reasonable attorneys’ fees, expert fees, costs including arbitration costs and fees.

16.  GENERAL.

All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by email to the address designated in the applicable Order Form, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Customer acknowledges that GrataPro may assign, subcontract or delegate any of its rights or obligations under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the GrataPro Services, including Confidential Information, and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of GrataPro Services, Data and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement Customer may have with GrataPro. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. For the purposes of this Agreement, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” Any prevention of or delay in performance by GrataPro hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.