Last Updated: July 27, 2023

Acceptance of These Terms and Conditions

Graceful, Inc. (“Graceful”, “we”, “us”, or “our”) provides our services (described below) and related content to you through our website(s) located at https://www.graceful.io (the “Site”) and through our mobile applications and related technologies (“Mobile Apps”, and collectively, such Mobile Apps and the Site, including any updated or new features, functionality and technology, the “Service”). All access and use of the Service is subject to these terms and conditions (as amended from time to time, these “Terms and Conditions”). Please read these Terms and Conditions carefully. By accessing, browsing, or otherwise using the Site, Mobile Apps, or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms and Conditions. If you do not accept these Terms and Conditions, you will not access, browse, or otherwise use the Service.

We reserve the right, at our sole discretion, to change or modify portions of these Terms and Conditions at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms and Conditions were last revised. You may read a current, effective copy of these Terms and Conditions by visiting the “Terms and Conditions” link on the Site and under the “Policies” section of our Mobile Apps. We will also notify you of any material changes, either through the Service user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms and Conditions. You should periodically visit this page to review the current Terms and Conditions so you are aware of any revisions. If you do not agree to abide by these or any future Terms and Conditions, you will not access, browse, or use (or continue to access, browse, or use) the Service.

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST GRACEFUL ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.

Your Privacy: At Graceful, we respect the privacy of our users. For more information, please see our Privacy Policy, located at https://www.graceful.io/privacy-policy and under the “Policies” section of our mobile apps (the “Privacy Policy”). By using the Service, you consent to our collection and use of personal data and other data as outlined therein.

Additional Terms: In addition, when using certain features through the Service, you will be subject to any additional terms applicable to such features that may be posted on or within the Service from time to time.  ******All such terms are hereby incorporated by reference into these Terms and Conditions.

Access and Use of the Service

Service Description: The Service is designed to allow you to upload and share photos, videos, documents and other media to a secure digital hub and allow people you invite to access and collaborate in the hub.

Your Registration Obligations: You may be required to register with Graceful or provide information about yourself (e.g., name and email address) in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current, and complete information about yourself as prompted by the Service’s registration form. Registration data and certain other information about you are governed by our Privacy Policy. If you are under 13 years of age, you are not authorized to use the Service, with or without registering. In addition, if you are under 18 years old, you may use the Service, with or without registering, only with the approval of your parent or guardian.

Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Graceful of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Graceful will not be liable for any loss or damage arising from your failure to comply with this paragraph.

Modifications to Service: Graceful reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Graceful will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

General Practices Regarding Use and Storage: You acknowledge that Graceful may establish general practices and limits concerning use of the Service, including the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Graceful’s or its third-party service providers’ servers on your behalf. You agree that Graceful has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Graceful reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Graceful reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Conditions of Access and Use

User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, and other materials (“content”) that you or anyone you have invited to upload content to the Service makes available to Graceful, including by uploading, posting, publishing, or displaying (hereinafter, “upload(ing)”) via the Service or by emailing or otherwise making available to other users of the Service (collectively, “User Content”)]. Graceful advises you to use caution in inviting others to upload content to the Service through your account.  The following are examples of the kinds of content and/or uses that are illegal or prohibited by Graceful. Graceful reserves the right to investigate and take appropriate legal action against anyone who, in Graceful’s sole judgement and discretion, violates this provision, including removing the offending content from the Service, suspending or terminating the account of such violators, and reporting the violator to law enforcement authorities. You agree to not use the Service to or assist or permit any other person or entity to:

1. email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses, worms, Trojan horses, bombs, or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, discriminatory, or otherwise objectionable; or (vii) in the sole judgment of Graceful, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Graceful or its users to any harm or liability of any type;
2. interfere with, tamper with, misappropriate, impair, damage, disable or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
3. violate any applicable local, state, national, or international law, or any regulations having the force of law;
4. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
5. solicit personal information from anyone under the age of 18;
6. harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
7. advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
8. further or promote any fraudulent or criminal activity or enterprise or provide instructional information about illegal activities;
9. obtain or attempt to access or otherwise obtain any content or information through any means not intentionally made available or provided for through the Service;
10. circumvent, remove, alter, deactivate, degrade, or thwart any of the security measures, content protections in or geographic restrictions on any content (including Service Content (as defined below)) available on or through the Service, including through the use of virtual private networks;
11. engage in or use any data mining, robots, spiders, web crawlers, scraping, or similar data gathering or extraction methods; or
12. Otherwise use the Service in any manner not permitted by these Terms and Conditions.

If you are blocked by Graceful from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).

Competitors: No employee, independent contractor, agent, or affiliate of any competing company is permitted to view, access, or use any portion of the Service without express written permission from Graceful. By viewing, using, or accessing the Service, you represent and warrant that you are not a competitor of Graceful or any of its affiliates, or acting on behalf of a competitor of Graceful in using or accessing the Service.

Transactions:  With respect to any and all purchases made by you in connection with the Service, you hereby acknowledge and agree that:

• Orders and Transactions.
• You will comply with all obligations with respect to each purchase made by you through the Service, including all financial obligations and terms and conditions with respect to the applicable credit card account, debit card account, and/or other payment/financial account/service through which you may be charged for and/or otherwise responsible for such purchase. In addition, please note that other parties (such as your applicable credit card provider and/or third-party payment service, such as Afterpay) may enforce their own terms and conditions directly with you, and we are not a party to any of those terms and conditions.
• Notwithstanding anything to the contrary in these Terms and Conditions, and without limiting any of Graceful’s rights hereunder, we may, in our sole discretion, (a) refuse or cancel any order you place with us and/or our Service, (b) adjust any of your orders to ensure compliance with these Terms and Conditions, and/or (c) limit or cancel quantities purchased per person, per household or per order, including, in each case, orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. Each of the foregoing may apply to orders placed by or under the same customer account, the same credit card number, debit card number, or other payment/financial account number, and/or orders that use the same billing and/or shipping address. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the email, billing address, and/or phone number provided at the time the order was made.
• Graceful prohibits the unauthorized placement of other trademarks, logos, images and designs on our products.
• Each purchase you make of a Graceful product or service through the Service shall also be subject to each Graceful policy applicable to that purchase.

Fees: To the extent the Service or any portion thereof is made available for any fee, you may be required to select a payment plan and provide information regarding your credit card or other payment instrument. You represent and warrant to Graceful that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with Graceful or the Payment Processor (as defined below), as applicable, of any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Graceful the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms and Conditions. If your payment plan includes an ongoing subscription that is automatically renewed periodically, you hereby authorize Graceful (through the Payment Processor) to bill your payment instrument in advance on such periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Graceful know within thirty (30) days after the date that Graceful charges you, or within such longer period of time as may be required under applicable law. We reserve the right to change Graceful’s prices. If Graceful does change prices, Graceful will provide notice of the change through the Service user interface, a pop-up notice, email, or through other reasonable means, at Graceful’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.

Payment Processing: Notwithstanding any amounts owed to Graceful hereunder, GRACEFUL DOES NOT PROCESS PAYMENT FOR ANY SERVICES. To facilitate payment for the Service via bank account, credit card, or debit card, we use Apple subscription billing services (“Apple”) for IOS mobile customers and Google subscription billing services (“Google”) for Android mobile customers.  These payment processing services are provided by Apple and Google and are subject to Apple’s terms and conditions and other policies available at https://support.apple.com/billing and Google’s terms and conditions and other policies available at https://support.google.com/googlepay (collectively, the “Apple and Google Agreements”). By agreeing to these Terms and Conditions, users that use the payment functions of the Service also agree to be bound by the Apple and Google Agreements, as the same may be modified by Apple and Google from time to time. As a condition of Graceful enabling payment processing services through Apple and Google, you represent and warrant to Graceful that all information you provide about your payment instruments and/or bank accounts is true and that you are authorized to use such payment instrument and/or bank account.  You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.  You hereby authorize Apple or Google (whichever is applicable to your mobile operating system) to store and continue billing your specified payment method even after such payment method has expired, to avoid interruptions in payment for your use of the Service. Graceful assumes no liability or responsibility for any payments you make through the Service.  Graceful is not responsible for the performance of Apple or Google. You also authorize Graceful to disclose to Apple or Google (whichever is applicable to your mobile operating system) any information related to your purchases and/or use of the payment processing services, subject to our Privacy Policy.

Codes and Programs:  Graceful may issue promotional and coupon codes (each, a “Code”) and/or operate promotions and/or programs (each, a “Program”) from time to time. We may make Codes, Programs, and other offers available to some or all users.  The provisions of this subsection (ii) apply to your use of Codes and Programs and will apply in addition to the terms and conditions of any specific Code or Program. Your use of any Code or Program offer is limited to the purpose for which your Code and/or Program offer was received, and any use beyond the prescribed limited purpose is prohibited.  Without limiting any of your obligations under these Terms and Conditions, Codes and Programs are limited to personal use, are not for resale, and may not be shared unless expressly authorized and directed by Graceful. Your use of each Code and Program will comply with all applicable laws, rules, and regulations, and you will not provide Graceful with any information or material (such as a photograph or an email address) that you are not authorized to provide us.  We can revoke a Code or Program at any time for any reason. Your abuse of a Code or Program, or your failure to abide by any of these Terms and Conditions or by any of the terms and conditions of any particular Code or Program, may lead to cancellation of your current Codes and Programs and/or your disqualification from participation in future Codes and Programs. If we determine that there is abuse of a Code or Program offer for a specific order before that order is fulfilled, we may cancel the Code and/or Program offer and declare the order invalid with no obligation to fulfill it. Codes and Programs may not be combined and must be used on a per purchase basis.

Cancellations and Refunds: You may cancel your subscription at any time through the manage subscription services on your Apple or Google mobile device.  As subscriptions are managed on a 30 day pre-paid billing cycle, your subscription will be available until the 30 day cycle ends. You may request a refund for your most recent billing cycle through the same subscription management services of Apple or Google that you would use to cancel the subscription. If you cancel your subscription, your ability to store more digital assets (photos, videos, documents, etc) to the hub will be disabled along with other product feature limitations that may be restricted until you renew the subscription.

Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, translate, host, create derivative works from, modify, sell, resell, grant access to, transfer, or otherwise use or exploit any portion of the Service for any commercial purposes. The Service is for your personal use.

Mobile Services and Software

Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device, and (iii) the ability to access certain features and content through Mobile Apps (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.

Telephonic Communications Services:  By using the Service and providing us with any of your telephone numbers, you are consenting to be contacted by Graceful by telephone (including on a recorded line), automated calling, automated telephone dialing system calling, automated system calling, artificial voice or pre-recorded calling, text message, SMS and/or MMS message, fax, or other telephonic or electronic means for marketing, solicitation, informational or another purposes, even if any such telephone numbers are registered on the National Do Not Call List, a State Do Not Call List, or the internal Do Not Call List of Graceful or its affiliates or partners. You may be required to respond to an initial call or message as instructed to complete your registration and confirm enrollment to receive such calls, texts or other telephonic communications. You do not have to consent to receive calls or text messages from Graceful or its affiliates or partners for marketing or solicitation purposes to purchase Graceful’s products or services. In the event you no longer wish to receive such calls, text messages or other telephonic communications, you agree to notify Graceful or its affiliates or partners, as applicable, directly. In the event you change or deactivate your telephone number, you agree to promptly update your Graceful account information to ensure that your messages are not sent to a person that acquires your old telephone number.

There is no additional charge for telephonic communications, but your carrier’s standard message and data rates apply to any calls, text messages, SMS or MMS messages you send or receive. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. We are not liable for any delays in the receipt of, or any failures to receive, any calls, text messages, SMS or MMS messages, as delivery is subject to effective transmission by your mobile carrier and compatibility of your mobile device. Please contact your mobile carrier if you have any questions regarding these issues or your mobile data and messaging plan.

By reply to any text, SMS or MMS message you receive from us, you may text “STOP” to cancel or “HELP” for customer support information. If you choose to cancel text, SMS or MMS messages from us, you agree to receive a final message from us confirming your cancellation.

Mobile App License: Subject to these Terms and Conditions, Graceful hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install each Mobile App on one mobile device and (b) use each Mobile App for your own personal use solely to access and use the Service. For clarity, the foregoing is not intended to prohibit you from installing each Mobile App on another device on which you also agreed to these Terms and Conditions. Each instance of these Terms and Conditions that you agree to in connection with downloading a Mobile App grants you the aforementioned rights in connection with the installation and use of the Mobile App on one device.

Ownership; Restrictions: The technology and software underlying the Service or distributed in connection therewith are the property of Graceful, its affiliates, and its licensors (including the Mobile Apps, the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, decompile or otherwise attempt to discover any source code, sell, assign, sublicense, lease or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Graceful.

Third-Party Distribution Channels: Graceful offers Software that may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms and Conditions are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Service, you agree to comply with all applicable terms of any agreement for such third-party products and services.

Apple-Enabled Software: With respect to Mobile Apps that are made available for your use in connection with an Apple-branded product (the “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms and Conditions, the following terms and conditions apply:

• Graceful and you acknowledge that these Terms and Conditions are concluded between Graceful and you only, and not with Apple Inc. (“Apple”), and that as between Graceful and Apple, Graceful, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
• You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
• Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
• Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Graceful’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
• Graceful and you acknowledge that Graceful, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
• In the event of any third-party claim that the Apple-Enabled Software or your possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Graceful and Apple, Graceful, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
• You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints, or claims with respect to the Apple-Enabled Software, they should be directed to Graceful as follows:

Via Email: info@graceful.io

Via Mail: 4555 Valley Commons Drive, Bozeman, MT 59718

• You must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., your wireless data service agreement.
• Graceful and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms and Conditions with respect to the Apple-Enabled Software, and that, upon your acceptance of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.

Google-Sourced Software: The following applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms and Conditions are between you and Graceful only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Graceful, and not Google, is solely responsible for Graceful’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms and Conditions; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms and Conditions as it relates to Graceful’s Google-Sourced Software.

Open Source Software: The Software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms. If required by any license for particular open source software, Graceful makes such open source software, and Graceful’s modifications to that open source software (if any), available by written request to info@graceful.io. Copyrights to the open source software are held by the respective copyright holders indicated therein.

Intellectual Property Rights

Service Content: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Graceful, you agree not to modify, copy, frame, scrape, rent, sublicense, lease, loan, sell, distribute, or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined above) that you upload to or make available through the Service in accordance with these Terms and Conditions. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.

Trademarks: The Graceful name and logos are trademarks and service marks of Graceful (collectively the “Graceful Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Graceful. Nothing in these Terms and Conditions or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Graceful Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Graceful Trademarks will inure to our exclusive benefit.

Third-Party Material: Under no circumstances will Graceful be liable in any way for any content or materials of any third parties (including users), including for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Graceful does not pre-screen content, but that Graceful and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Graceful and its designees will have the right to remove any content that violates these Terms and Conditions or is deemed by Graceful, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

User Content: You represent and warrant that you own all right, title and interest in and to the User Content, including all copyrights and rights of publicity contained therein. You hereby grant Graceful and its affiliates, successors and assigns a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Service and the promotion, advertising or marketing of the foregoing in any form, medium or technology now known or later developed. You assume all risk associated with your User Content and the transmission of your User Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of your User Content.

You hereby authorize Graceful and its third-party service providers to derive statistical and usage data relating to your use of the Service (“Usage Data”). We may use Usage Data for any purpose in accordance with applicable law and our Privacy Policy.

Any questions, comments, suggestions, ideas, feedback, reviews, or other information about the Service (“Submissions”), provided by you to Graceful are non-confidential and Graceful will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment, attribution, or compensation to you.

You acknowledge and agree that Graceful may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Terms and Conditions; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Graceful, its users, or the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

Copyright Complaints: Graceful respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Graceful of your infringement claim in accordance with the procedure set forth below.

Graceful will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Graceful’s Copyright Agent at info@graceful.io (Subject line: “DMCA Takedown Request”). You may also contact the Copyright Agent by mail at:

Graceful Inc

4555 Valley Commons Drive, Bozeman, MT 59718

To be effective, the notification must be in writing and contain the following information:

• a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
• identification of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works or other intellectual property are covered by a single notification, a representative list of such works or other intellectual property;
• identification of the content that is claimed to be infringing or to be the subject of infringing activity, and where the content that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
• a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or are authorized to act on the behalf of the owner of the copyright or intellectual property that is allegedly infringed.

Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:

• your physical or electronic signature;
• identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• a statement by you, made under penalty of perjury, that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content to be removed or disabled; and
• your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located in New York, New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Graceful will send a copy of the counter-notice to the original complaining party informing them that Graceful may replace the removed content or cease disabling it within ten (10) business days. Unless the owner of the applicable copyrighted work or other intellectual property files an action seeking a court order against Graceful or the user, the removed content may be replaced, or access to it restored, within ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.

Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Graceful has adopted a policy of terminating, in appropriate circumstances and at Graceful’s sole discretion, the accounts of users who are deemed to be repeat infringers. Graceful may also at its sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Third-Party Services and Websites

The Service may provide links or other access to services, sites, technology, and resources that are provided or otherwise made available by third parties (the “Third-Party Services”). Additionally, you may enable or log in to the Service via various online Third-Party Services, such as social media and social networking services like [Facebook or Google]. Your access and use of the Third-Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and you may be required to authenticate to or create separate accounts to use Third-Party Services on the websites or via the technology platforms of their respective providers. Some Third-Party Services will provide us with access to certain information that you have provided to third parties, including through such Third-Party Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating Third-Party Services and our use, storage and disclosure of information related to you and your use of such Third-Party Services within the Service, please see our Privacy Policy. Graceful has no control over and is not responsible for such Third-Party Services, including for the accuracy, availability, reliability, or completeness of information shared by or available through Third-Party Services, or on the privacy practices of Third-Party Services. We encourage you to review the privacy policies of the third parties providing Third-Party Services prior to using such services. You, and not Graceful, will be responsible for any and all costs and charges associated with your use of any Third-Party Services. Graceful enables these Third-Party Services merely as a convenience and the integration or inclusion of such Third-Party Services does not imply an endorsement or recommendation. Any dealings you have with third parties while using the Service are between you and the third party.  Graceful 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 Third-Party Services.

Indemnification

To the extent permitted under applicable law, you agree to defend, indemnify, and hold harmless Graceful, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Graceful Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms and Conditions, or your violation of any rights of another. Graceful will provide notice to you of any such claim, suit, or proceeding. Graceful reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Graceful’s defense of such matter. You may not settle or compromise any claim against any Graceful Party without Graceful’s written consent.

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE GRACEFUL PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

THE GRACEFUL PARTIES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE GRACEFUL PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR PERSONAL INJURY, LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE GRACEFUL PARTIES, OR ANY OF THEM, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE.  IN NO EVENT WILL THE GRACEFUL PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID GRACEFUL IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION”, “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Dispute Resolution By Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

1. Agreement to Arbitrate

This Dispute Resolution by Binding Arbitration section is referred to in these Terms and Conditions as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Graceful, whether arising out of or relating to these Terms and Conditions (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms and Conditions, you and Graceful are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

1. Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND GRACEFUL AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND GRACEFUL AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS, EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.

1. Pre-Arbitration Dispute Resolution

Graceful is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at info@graceful.io. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Graceful should be sent to 4555 Valley Commons Drive, Bozeman, MT 59718 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Graceful and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Graceful may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Graceful or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Graceful is entitled.

1. Arbitration Procedures

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms and Conditions as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and Conditions and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Graceful and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Graceful agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

1. Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement.  To the extent any Arbitration Fees are not specifically allocated to either Graceful or you under the AAA Rules, Graceful and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, Graceful will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Graceful will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

1. Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

1. Severability

If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms and Conditions will continue to apply.

1. Future Changes to Arbitration Agreement

Notwithstanding any provision in these Terms and Conditions to the contrary, Graceful agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Graceful written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms and Conditions (or accepted any subsequent changes to these Terms and Conditions).

Termination

You agree that Graceful, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if Graceful believes that you have violated or acted inconsistently with the letter or spirit of these Terms and Conditions. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. Graceful may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms and Conditions may be affected without prior notice, and acknowledge and agree that Graceful may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Graceful will not be liable to you or any third party for any termination of your access to the Service.

You may terminate your account at any time by sending us an email to info@graceful.io.

Upon termination or expiration of your account, Graceful will use commercially reasonable efforts to notify you of such termination or expiration via the email address associated with your account, and provide you a link you may use, for a period of not less than ninety (90) days after such termination or expiration, at no additional cost, solely for purposes of retrieving your User Content. You may export your User Content at any time that the User Content is available in the Service via export capabilities.  Graceful shall have no responsibility or liability for your failure to retrieve your User Content.

User Disputes

You agree that you are solely responsible for your interactions with any other user in connection with the Service, and Graceful will have no liability or responsibility with respect thereto. Graceful reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

General

These Terms and Conditions (together with the terms incorporated by reference herein) constitute the entire agreement between you and Graceful governing your access and use of the Service, and supersede any prior agreements between you and Graceful with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use Third-Party Services, third-party content or third-party software. These Terms and Conditions will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Graceful submit to the personal and exclusive jurisdiction of the state and federal courts located in New York, New York. The failure of Graceful to exercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms and Conditions remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms and Conditions and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms and Conditions without the prior written consent of Graceful, but Graceful may assign or transfer these Terms and Conditions, in whole or in part, without restriction. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect. As used in these Terms and Conditions, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms and Conditions or other matters by displaying notices or links to notices generally on the Service. Graceful will not be in default hereunder by reason of any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond Graceful’s reasonable control.  To the extent permitted by applicable law, rule, or regulation, no presumption or burden of proof will arise favoring or disfavoring either you or Graceful by virtue of the authorship of these Terms and Conditions.  The heading contained in these Terms and Conditions are for reference purposes only and will not affect in any way the meaning or interpretation of these Terms and Conditions.

Notice for California Users

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at dca@dca.ca.gov; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at Graceful, Inc., via email info@graceful.io or via mail to 4555 Valley Commons Drive, Bozeman, MT 59718.

U.S. Government Restricted Rights

The Service is made available to the U.S. government with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Access or use of the Service (including the Software) by the U.S. government constitutes acknowledgement of our proprietary rights in the Service (including the Software).

Questions? Concerns? Suggestions?

Please contact us at info@graceful.io or 4555 Valley Commons Drive, Bozeman, MT 59718 to report any violations of these Terms and Conditions or to pose any questions regarding these Terms and Conditions.

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