Date of Last Revision: March 6, 2023
Acceptance of These Terms and Conditions
Graceful, Inc. (“Graceful”, “we”, “us”, or “our”) provides our services (described below) and related contentto you through our website(s) located at https://www.graceful.io (the “Site”) and through our mobileapplications 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 ofthe Service is subject to these terms and conditions (as amended from time to time, these “Terms andConditions”). Please read these Terms and Conditions carefully. By accessing, browsing, or otherwiseusing 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 Termsand 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 Conditionsat any time. If we do this, we will post the changes on this page and will indicate at the top of this pagethe date these Terms and Conditions were last revised. You may read a current, effective copy of theseTerms 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 Serviceuser interface, a pop-up notice, email, or through other reasonable means. Your continued use of theService after the date any such changes become effective constitutes your acceptance of the new Termsand Conditions. You should periodically visit this page to review the current Terms and Conditions so youare aware of any revisions. If you do not agree to abide by these or any future Terms and Conditions, youwill not access, browse, or use (or continue to access, browse, or use) the Service.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY CONTAIN ANAGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOURLEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES(WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDINGAND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUECLAIMS AGAINST GRACEFUL ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASSMEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLYBE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORYRELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOUHAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Additional Terms: In addition, when using certain features through the Service, you will be subject to anyadditional 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 photos, videos, and othermedia to a secure digital vault and allow you and your children to access that vault using your ownspecialized physical cube (the “Cube”) with a QR code.
Your Registration Obligations: You may be required to register with Graceful or provide informationabout yourself (e.g., name and email address) in order to access and use certain features of the Service.
Member Account, Password and Security: You are responsible for maintaining theconfidentiality of your password and account details, if any, and are fully responsible for any and allactivities that occur under your password or account. You agree to (a) immediately notify Graceful of anyunauthorized use of your password or account or any other breach of security, and (b) ensure that youexit from your account at the end of each session when accessing the Service. Graceful will not be liablefor 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 orpermanently, the Service (or any part thereof) with or without notice. You agree that Graceful will not beliable 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 establishgeneral practices and limits concerning use of the Service, including the maximum period of time thatdata or other content will be retained by the Service and the maximum storage space that will be allottedon Graceful’s or its third-party service providers’ servers on your behalf. You agree that Graceful has noresponsibility or liability for the deletion or failure to store any data or other content maintained oruploaded by the Service. You acknowledge that Graceful reserves the right to terminate accounts that areinactive for an extended period of time. You further acknowledge that Graceful reserves the right tochange 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 oranyone you have invited to upload content to the Service makes available to Graceful, including byuploading, posting, publishing, or displaying (hereinafter, “upload(ing)”) via the Service or by emailing orotherwise making available to other users of the Service (collectively, “User Content”)]. Graceful advisesyou to use caution in inviting others to upload content to the Service through your account. The followingare examples of the kinds of content and/or uses that are illegal or prohibited by Graceful. Gracefulreserves the right to investigate and take appropriate legal action against anyone who, in Graceful’s solejudgement and discretion, violates this provision, including removing the offending content from theService, suspending or terminating the account of such violators, and reporting the violator to lawenforcement authorities. You agree to not use the Service to or assist or permit any other person or entityto:
a) email or otherwise upload any content that (i) infringes any intellectual property or otherproprietary rights of any party; (ii) you do not have a right to upload under any law or undercontractual or fiduciary relationships; (iii) contains software viruses, worms, Trojan horses,bombs, or any other computer code, files or programs designed to interrupt, destroy, or limitthe 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 orunauthorized advertising, promotional materials, commercial activities and/or sales, “junkmail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any otherform of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious,excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive ofanother’s privacy, hateful, discriminatory, or otherwise objectionable; or (vii) in the solejudgment of Graceful, is objectionable or which restricts or inhibits any other person fromusing or enjoying the Service, or which may expose Graceful or its users to any harm orliability of any type;
interfere with, tamper with, misappropriate, impair, damage, disable or disrupt the Service orservers or networks connected to the Service, or disobey any requirements, procedures,policies, or regulations of networks connected to the Service;
violate any applicable local, state, national, or international law, or any regulations having theforce of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliationwith a person or entity;
solicit personal information from anyone under the age of 18;
harvest or collect email addresses or other contact information of other users from theService by electronic or other means for the purposes of sending unsolicited emails or otherunsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is notspecifically authorized;
further or promote any fraudulent or criminal activity or enterprise or provide instructionalinformation about illegal activities;
obtain or attempt to access or otherwise obtain any content or information through anymeans not intentionally made available or provided for through the Service;
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 virtualprivate networks;
engage in or use any data mining, robots, spiders, web crawlers, scraping, or similar datagathering or extraction methods; or
Otherwise use the Service in any manner not permitted by these Terms and Conditions.
using a proxy IP address or virtual private network).
are blocked by Graceful from accessing the Service (including by blocking your IP address), younot to implement any measures to circumvent such blocking (e.g., by masking your IP address or
Competitors: No employee, independent contractor, agent, or affiliate of any competingcompany is permitted to view, access, or use any portion of the Service without express writtenpermission from Graceful. By viewing, using, or accessing the Service, you represent and warrant thatyou are not a competitor of Graceful or any of its affiliates, or acting on behalf of a competitor of Gracefulin using or accessing the Service.
Transactions: With respect to any and all purchases made by you in connection with theService, you hereby acknowledge and agree that:
o Orders and Transactions.
o You will comply with all obligations with respect to each purchase made by youthrough the Service, including all financial obligations and terms and conditionswith respect to the applicable credit card account, debit card account, and/orother payment/financial account/service through which you may be charged forand/or otherwise responsible for such purchase. In addition, please note thatother parties (such as your applicable credit card provider and/or third-partypayment service, such as Afterpay) may enforce their own terms and conditionsdirectly with you, and we are not a party to any of those terms and conditions.
o Notwithstanding anything to the contrary in these Terms and Conditions, andwithout 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) adjustany of your orders to ensure compliance with these Terms and Conditions,and/or (c) limit or cancel quantities purchased per person, per household or perorder, including, in each case, orders that, in our sole judgment, appear to beplaced by dealers, resellers or distributors. Each of the foregoing may apply toorders placed by or under the same customer account, the same credit cardnumber, debit card number, or other payment/financial account number, and/ororders that use the same billing and/or shipping address. In the event we make achange to or cancel an order, we will attempt to notify you by contacting theemail, billing address, and/or phone number provided at the time the order wasmade.
o Graceful prohibits the unauthorized placement of other trademarks, logos,images and designs on our products.
o Each purchase you make of a Graceful product or service through the Serviceshall 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 berequired to select a payment plan and provide information regarding your credit card or other paymentinstrument. You represent and warrant to Graceful that such information is true and that you areauthorized to use the payment instrument. You will promptly update your account information withGraceful or Stripe (as defined below), as applicable, of any changes (for example, a change in your billingaddress or credit card expiration date) that may occur. You agree to pay Graceful the amount that isspecified in the payment plan in accordance with the terms of such plan and these Terms and Conditions.If you dispute any charges you must let Graceful know within thirty (30) days after the date that Gracefulcharges you, or within such longer period of time as may be required under applicable law. We reservethe right to change Graceful’s prices.
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 toyour use of Codes and Programs and will apply in addition to the terms and conditions of any specificCode or Program. Your use of any Code or Program offer is limited to the purpose for which your Codeand/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 arelimited 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, andregulations, and you will not provide Graceful with any information or material (such as a photograph oran email address) that you are not authorized to provide us. We can revoke a Code or Program at anytime for any reason. Your abuse of a Code or Program, or your failure to abide by any of these Terms andConditions or by any of the terms and conditions of any particular Code or Program, may lead tocancellation of your current Codes and Programs and/or your disqualification from participation in futureCodes and Programs. If we determine that there is abuse of a Code or Program offer for a specific orderbefore that order is fulfilled, we may cancel the Code and/or Program offer and declare the order invalidwith no obligation to fulfill it. Codes and Programs may not be combined and must be used on a perpurchase basis.
Cancellations and Refunds: If, within thirty (30) days after your purchase of access to theService, you decide you no longer wish to have access to the Service, you may request a refund of yourpurchase by emailing Graceful at email@example.com. Graceful will send to your email on file informationabout returning your Cube to us, and upon receipt of your Cube, Graceful may provide you a refund,minus the cost to Graceful of arranging to have your Cube shipped back to Graceful. Should Gracefulissue you a refund, your access to your vault may be terminated. Payments will not be refunded aftersuch thirty (30) day period. Graceful does not support purchase cancellations at this time.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree notto display, distribute, license, perform, publish, reproduce, duplicate, copy, translate, host, createderivative works from, modify, sell, resell, grant access to, transfer, or otherwise use or exploit any portionof 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 theService and the Site from a mobile device, and (iii) the ability to access certain features and contentthrough Mobile Apps (collectively, the “Mobile Services”). To the extent you access the Service through amobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. Inaddition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by yourcarrier, 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 yourtelephone numbers, you are consenting to be contacted by Graceful by telephone (including on arecorded 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 telephonicor electronic means for marketing, solicitation, informational or another purposes, even if any suchtelephone numbers are registered on the National Do Not Call List, a State Do Not Call List, or theinternal Do Not Call List of Graceful or its affiliates or partners. You may be required to respond to aninitial call or message as instructed to complete your registration and confirm enrollment to receive suchcalls, texts or other telephonic communications. You do not have to consent to receive calls or textmessages from Graceful or its affiliates or partners for marketing or solicitation purposes to purchaseGraceful’s products or services. In the event you no longer wish to receive such calls, text messages orother 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 yourGraceful account information to ensure that your messages are not sent to a person that acquires yourold telephone number.
There is no additional charge for telephonic communications, but your carrier’s standard messageand data rates apply to any calls, text messages, SMS or MMS messages you send or receive. Yourcarrier may prohibit or restrict certain mobile features and certain mobile features may be incompatiblewith your carrier or mobile device. We are not liable for any delays in the receipt of, or any failures toreceive, any calls, text messages, SMS or MMS messages, as delivery is subject to effective transmissionby 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 cancelor “HELP” for customer support information. If you choose to cancel text, SMS or MMS messages fromus, 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 alimited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install each MobileApp on one mobile device and (b) use each Mobile App for your own personal use solely to access anduse the Service. For clarity, the foregoing is not intended to prohibit you from installing each Mobile Appon another device on which you also agreed to these Terms and Conditions. Each instance of theseTerms and Conditions that you agree to in connection with downloading a Mobile App grants you theaforementioned 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 inconnection therewith are the property of Graceful, its affiliates, and its licensors (including the MobileApps, 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 reservedby Graceful.
Third-Party Distribution Channels: Graceful offers Software that may be made availablethrough the Apple App Store, the Google Play Store, or other distribution channels (“DistributionChannels”). If you obtain such Software through a Distribution Channel, you may be subject to additionalterms of the Distribution Channel. These Terms and Conditions are between you and us only, and notwith the Distribution Channel. To the extent that you utilize any other third-party products and services inconnection with your use of the Service, you agree to comply with all applicable terms of any agreementfor such third-party products and services.
Apple-Enabled Software: With respect to Mobile Apps that are made available for your use inconnection with an Apple-branded product (the “Apple-Enabled Software”), in addition to the other termsand conditions set forth in these Terms and Conditions, the following terms and conditions apply:
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 anddisplayed via the Service may be trademarks or service marks of their respective owners who may or maynot endorse or be affiliated with or connected to Graceful. Nothing in these Terms and Conditions or theService should be construed as granting, by implication, estoppel, or otherwise, any license or right to useany 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 contentor materials of any third parties (including users), including for any errors or omissions in any content, orfor any loss or damage of any kind incurred as a result of the use of any such content. You acknowledgethat Graceful does not pre-screen content, but that Graceful and its designees will have the right (but notthe 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 thatviolates these Terms and Conditions or is deemed by Graceful, in its sole discretion, to be otherwiseobjectionable. You agree that you must evaluate, and bear all risks associated with, the use of anycontent, 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 theUser Content, including all copyrights and rights of publicity contained therein. You hereby grant Gracefuland its affiliates, successors and assigns a non-exclusive, worldwide, royalty-free, fully paid-up,transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, and irrevocablelicense to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Contentin connection with the operation of the Service and the promotion, advertising or marketing of theforegoing in any form, medium or technology now known or later developed. You assume all riskassociated with your User Content and the transmission of your User Content, and you have soleresponsibility for the accuracy, quality, legality and appropriateness of your User Content.
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 theunrestricted 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 UserContent if required to do so by law or in the good faith belief that such preservation or disclosure isreasonably 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 thirdparties; or (d) protect the rights, property, or personal safety of Graceful, its users, or the public. Youunderstand 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 technicalrequirements of connecting networks or devices.
Copyright Complaints: Graceful respects the intellectual property of others, and we ask ourusers to do the same. If you believe that your work has been copied in a way that constitutes copyrightinfringement, or that your intellectual property rights have been otherwise violated, you should notifyGraceful 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 actionsunder the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws withrespect to any alleged or actual infringement. A notification of claimed copyright infringement should beemailed to Graceful’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”).You may also contact the Copyright Agent by mail at:
4555 Valley Commons Drive, Bozeman, MT 59718
To be effective, the notification must be in writing and contain the following information:
To the extent permitted under applicable law, you agree to defend, indemnify, and hold harmlessGraceful, 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 willprovide notice to you of any such claim, suit, or proceeding. Graceful reserves the right to assume theexclusive defense and control of any matter that is subject to indemnification under this section, and youagree to cooperate with any reasonable requests assisting Graceful’s defense of such matter. You maynot 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 WARRANTIESOF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
THE GRACEFUL PARTIES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOURREQUIREMENTS; (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 BEACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION,OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEETYOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE GRACEFUL PARTIES WILL NOT BELIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARYDAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR PERSONALINJURY, LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THEGRACEFUL PARTIES, OR ANY OF THEM, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OROTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THECOST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANYGOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGESRECEIVED 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 OTHERMATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE GRACEFUL PARTIES’ TOTALLIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNTYOU HAVE PAID GRACEFUL IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDREDDOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAINWARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL ORCONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVEMAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU AREDISSATISFIED 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” AREINTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEWJERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OFTHE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THEVALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. 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 arisebetween you and Graceful, whether arising out of or relating to these Terms and Conditions (includingany alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactionsbetween us, will be resolved exclusively through final and binding arbitration, rather than a court, inaccordance with the terms of this Arbitration Agreement, except that you may assert individual claims insmall claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you frombringing issues to the attention of federal, state, or local agencies, and such agencies can, if the lawallows, seek relief against us on your behalf. You agree that, by entering into these Terms andConditions, 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 Actgoverns the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND GRACEFUL AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHERONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANYPURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU ANDGRACEFUL AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORETHAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANYFORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THEARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORYRELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THEEXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL
CLAIMS, EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARDPUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THEENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Graceful is always interested in resolving disputes amicably and efficiently, and most customer concernscan be resolved quickly and to the customer’s satisfaction by emailing customer support email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must firstsend to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Graceful shouldbe 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 Gracefuland you do not resolve the claim within sixty (60) calendar days after the Notice is received, you orGraceful may commence an arbitration proceeding. During the arbitration, the amount of any settlementoffer made by Graceful or you will not be disclosed to the arbitrator until after the arbitrator determines theamount, if any, to which you or Graceful is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American ArbitrationAssociation’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 itswebsite, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can befound at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is anyinconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, theapplicable terms of this Arbitration Agreement will control unless the arbitrator determines that theapplication of the inconsistent Arbitration Agreement terms would not result in a fundamentally fairarbitration. 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, andarbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and morestreamlined than trials and other judicial proceedings, the arbitrator can award the same damages andrelief on an individual basis that a court can award to an individual under these Terms and Conditions andapplicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court onlyfor very limited reasons.
Unless Graceful and you agree otherwise, any arbitration hearings will take place in a reasonablyconvenient location for both parties with due consideration of their ability to travel and other pertinentcircumstances. If the parties are unable to agree on a location, the determination will be made by AAA. Ifyour claim is for $10,000 or less, Graceful agrees that you may choose whether the arbitration will beconducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, orby an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to ahearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration isconducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findingsand conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will begoverned by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent anyArbitration Fees are not specifically allocated to either Graceful or you under the AAA Rules, Graceful andyou shall split them equally; provided that if you are able to demonstrate to the arbitrator that you areeconomically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determinesfor any reason that you should not be required to pay your portion of any Arbitration Fees, Graceful willpay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitrationwill be prohibitive as compared to the costs of litigation, Graceful will pay as much of the Arbitration Feesas the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of
attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will bestrictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than thesubsection (b) above titled “Prohibition of Class and Representative Actions and Non-IndividualizedRelief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a termor provision that is valid and enforceable and that comes closest to expressing the intention of the invalidor unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If acourt or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Classand Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entiretyof this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid orunenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms andConditions will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms and Conditions to the contrary, Graceful agrees that if itmakes any future change to this Arbitration Agreement (other than a change to the Notice Address) whileyou are a user of the Service, you may reject any such change by sending Graceful written notice withinthirty (30) calendar days of the change to the Notice Address provided above. By rejecting any futurechange, you are agreeing that you will arbitrate any dispute between us in accordance with the languageof this Arbitration Agreement as of the date you first accepted these Terms and Conditions (or acceptedany subsequent changes to these Terms and Conditions).
You agree that Graceful, in its sole discretion, may suspend or terminate your account (or any partthereof) 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 theletter or spirit of these Terms and Conditions. Any suspected fraudulent, abusive, or illegal activity thatmay be grounds for termination of your use of the Service, may be referred to appropriate lawenforcement authorities. Graceful may also in its sole discretion and at any time discontinue providing theService, or any part thereof, with or without notice. You agree that any termination of your access to theService under any provision of these Terms and Conditions may be effected without prior notice, andacknowledge and agree that Graceful may immediately deactivate or delete your account and all relatedinformation 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 theService.
You may terminate your account at any time by sending us an email to firstname.lastname@example.org.
Upon termination or expiration of your account, Graceful will use commercially reasonable efforts to notifyyou of such termination or expiration via the email address associated with your account, and provide youa link you may use, for a period of not less than ninety (90) days after such termination or expiration, atno additional cost, solely for purposes of retrieving your User Content. You may export your User Contentat any time that the User Content is available in the Service via export capabilities. Graceful shall haveno responsibility or liability for your failure to retrieve your User Content.
You agree that you are solely responsible for your interactions with any other user in connection with theService, and Graceful will have no liability or responsibility with respect thereto. Graceful reserves theright, but has no obligation, to become involved in any way with disputes between you and any other userof the Service.
These Terms and Conditions (together with the terms incorporated by reference herein) constitute theentire agreement between you and Graceful governing your access and use of the Service, andsupersede any prior agreements between you and Graceful with respect to the Service. You also may besubject to additional terms and conditions that may apply when you use Third-Party Services, third-partycontent or third-party software. These Terms and Conditions will be governed by the laws of the State ofNew York without regard to its conflict of law provisions. With respect to any disputes or claims notsubject to arbitration, as set forth above, you and Graceful submit to the personal and exclusivejurisdiction of the state and federal courts located in New York, New York. The failure of Graceful toexercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver ofsuch right or provision. If any provision of these Terms and Conditions is found by a court of competentjurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect tothe parties’ intentions as reflected in the provision, and the other provisions of these Terms andConditions 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 Conditionsmust be filed within one (1) year after such claim or cause of action arose or be forever barred. A printedversion of these Terms and Conditions and of any notice given in electronic form will be admissible injudicial or administrative proceedings based upon or relating to these Terms and Conditions to the sameextent and subject to the same conditions as other business documents and records originally generatedand maintained in printed form. You may not assign these Terms and Conditions without the prior writtenconsent 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 nolegal 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 befollowed 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 mattersby displaying notices or links to notices generally on the Service. Graceful will not be in default hereunderby reason of any failure or delay in the performance of its obligations where such failure or delay is due tocivil 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, orany other circumstances or causes beyond Graceful’s reasonable control. To the extent permitted byapplicable law, rule, or regulation, no presumption or burden of proof will arise favoring or disfavoringeither you or Graceful by virtue of the authorship of these Terms and Conditions. The heading containedin these Terms and Conditions are for reference purposes only and will not affect in any way the meaningor 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 thefollowing specific consumer rights notice: The Complaint Assistance Unit of the Division of ConsumerServices of the California Department of Consumer Affairs may be contacted (a) via email email@example.com; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625North 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). Youmay contact us at Graceful, Inc., via email firstname.lastname@example.org or via mail to 4555 Valley CommonsDrive, 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 48CFR 252.227-7013 et seq. or its successor. Access or use of the Service (including the Software) by theU.S. government constitutes acknowledgement of our proprietary rights in the Service (including theSoftware).
Questions? Concerns? Suggestions?
Please contact us at email@example.com or 4555 Valley Commons Drive, Bozeman, MT 59718 to reportany violations of these Terms and Conditions or to pose any questions regarding these Terms andConditions.
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