1. Parties. The parties to this Subscription Agreement (this “Agreement”) are you and the owner of the GraphXSys.com website and the GraphX applications, Graph X Systems & Reproductions Inc., a New York Corporation (“GraphX Systems”). If you are not acting on behalf of yourself as an individual, then “you”, “your”, and “yourself” means your company or organization or the person you are representing, and you represent and warrant to GraphX Systems that you have the authority and consent to act for and bind such company, organization, or person. All references to “we”, “us”, “our”, “this website” or “this site” shall be construed to mean GraphX Systems and the GraphXSys.com website, as the context may require. Customer Data shall be defined as any and all financial or non-financial data or other information of whatever name, nature or kind that is provided by you to us or otherwise collected by us in the provision of the Software or the Services or the use of such Software or Services pursuant to the Agreement (the “Customer Data”). Content shall be defined broadly as any other information, data, experience, report, result or product of the interaction between you and the GraphX Systems website of the GraphX Sync Client that is not otherwise covered by the definitions of the site, or its Services, Software or Customer Data.

2. Agreement. The agreement between you and GraphX Systems consists of this Agreement, plus our Terms of Use and Privacy Policy, which are incorporated herein and accessible on this site’s home page. If there is any conflict between this Agreement and the Terms of Use or the Privacy Policy, this Agreement shall control.

3. Modification of Agreement. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through a link on this site’s home page. You should check this Agreement periodically for modifications by scrolling to the bottom of this Agreement for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT, SUBJECT TO THE TERM AND CONDITIONS SET FORTH IN THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE. You agree that non-material modifications will not be a basis for termination, and you agree that non-material modifications will be deemed automatically accepted. “Non-material modification” means a modification that does not substantially and adversely affect you, when compared to the existing agreement to which you are bound.

4. Subscription Eligibility. Subscriptions are not available to individuals under the age of 18 years of age

5. Subscription Services. Subscription services include access to the GraphXSys website application selected for the term of your subscription, for the applicable fees then in effect (the “Services”). If we offer a free version of our application, and you are subscribed to a free version, the term of the subscription is month-to-month and is subject to termination by us at any time, without notice. We reserve the right to modify the Services at any time. The Services consist of access for the term of your subscription to the selected GraphXSys website application in the cloud, pursuant to which Customer Data, Content or other data is synced through our sync software and can be viewed in a variety of “business-intelligence” formats that enable you to make informed business decisions. The Services can also include add-on modules or applications that we may offer from time to time at an additional cost. You agree that you are not receiving a license to use the Services, only a right of access to the Services on the site for the term of your subscription. The GraphX application is software-as-a-service.

6. Software License Agreement. The Services may be enabled by a software website application that will be downloaded and installed on your computer or on a server. This software is called the GraphX Sync Client. The GraphX Sync Client is a sync application pursuant to which data in QuickBooks files (and/or other accounting program files or financial reporting software) is automatically collected and, if the subscription covers multiple files, consolidated, into our GraphX cloud application (the “Software” or the “GraphX Sync Client”). Accordingly, you and we are entering into an end-user license agreement, permitting your use of the Software or the GraphX Sync Client, on the terms and conditions set forth in the following Software License Agreement. The Software License Agreement is incorporated into this Agreement. In the event of a conflict between the Software License Agreement and the other terms of this Agreement, pertaining to the GraphX Sync Client, the Software License Agreement shall control.

i. The parties to the Software License Agreement are you, the licensee, and GraphX Systems, the licensor. If you are not acting on behalf of yourself as an individual, then “you” means your company or organization or the person you are representing, and you represent and warrant to us that you have the authority and consent to act for and bind such company, organization, or person.

ii. The software licensed under this Software License Agreement consists of computer programs only in compiled, object code form, referred to as the GraphX Sync Client.

iii. The term of the license granted herein for the registered version of the Software shall be on a subscription basis with a term beginning with your acceptance of this Agreement and continuing for so long as you have a valid subscription for the Services.

iv. If you are a registered user of the Software, you are granted non-exclusive rights to install and use the Software on any computer or workstation and/or to install, use and/or transmit the Software over an internal computer network.

v. You may not: (i) permit others to use the Software, except as expressly provided above for authorized network use; (ii) reproduce or distribute the Software; (iii) reverse engineer, decompile, or disassemble the Software, except to the extent this restriction is expressly prohibited by applicable law; (iv) modify, translate, or otherwise make derivative works based on the Software; (v) merge the Software with another product; (vi) copy the Software, except as expressly provided above; (vii) use the Software to build products or support services competitive to GraphX Systems; or (viii) remove or obscure any proprietary rights notices or labels on the Software.

vi. GraphX Systems owns the Software, any physical copies thereof, and all intellectual property rights embodied therein, including patents, trademarks, copyrights and valuable trade secrets embodied in the Software’s design and coding methodology. The Software is protected by United States patent and copyright laws and international treaty provisions. This Software License Agreement provides you only a non-exclusive limited use license, and no ownership interest in any intellectual property. We reserve the right to require you to transfer possession of any physical copies of the Software to us and/or to delete any electronic copies.

7. Subscription Use and Restrictions. Subject to the terms and conditions of this Agreement, our Terms of Use, and our Privacy Policy, you may access and use this site, its Services, Software, Customer Data or Content only for your own internal purposes, in return for your continued payment of applicable subscriber fees when due. All rights not expressly granted in this Agreement are reserved by us.

i. You will be granted authorized login protocols for the site, its Services, Software, Customer Data or Content and you agree not to use the site, its Services, Software, Customer Data or Content in excess of your authorized login protocols. You agree not to access (or attempt to access) this site, its Services, Software, Customer Data or Content by any means, other than through the interface we provide, including but not limited to any automated means (including use of scripts or web crawlers).

ii. You are not authorized to (i) use, resell, license or sublicense, lease, disclose, transfer, assign, re-subscribe, distribute, or otherwise commercially exploit this site, its Services, Software, Customer Data or Content, (ii) modify, translate, or otherwise make derivative works based upon this site, its Services, Software, Customer Data or Content, (iii) “frame” or “mirror” this site, its Services, Software, Customer Data or Content on any other computer, server or Internet-enabled device, (iv) copy, reproduce, republish, download, transmit in any form or by any means this site, its Services, Software, Customer Data or Content, (v) access or use this site, its Services, Software, Customer Data or Content to build products or support services or software competitive to GraphX Systems or with any other products or services not provided directly by GraphX Systems to the end-user, or (v) use, reverse engineer, decompile, or disassemble this site, its Services, Software, Customer Data or Content for any purpose other than permitted by the Agreement, except to the extent this restriction is expressly prohibited by applicable law.

iii. You are not authorized to, and you agree not to, use this site, its Services, Software, Customer Data or Content (i) for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable (the designation of any such materials is entirely at our sole discretion), (ii) for any illegal, unethical, unscrupulous, or illegitimate business or other purpose, (iii) to publish any material or information that is defamatory, fraudulent, harassing, an invasion of privacy, or otherwise violates any person’s legal rights, (iv) in such a way that causes harm to this site, its Services, Software, Customer Data or Content or impairment of the availability or accessibility of this site, its Services, Software, Customer Data or Content or (v) to transmit any spam, malware, or virus.
iv. You must accept all updates, fixes, and upgrades to the site, its Services, Software, Customer Data or Content for which you are subscribing. We may modify, enhance, replace, or make changes to the site, its Services, Software, Customer Data or Content in our sole discretion at any time and from time to time, provided that for any paid subscriptions, we will maintain reasonable equivalence in terms of features and capabilities.

v. For the purposes of customer service, technical support, interaction with customers, and marketing services or products of third parties with whom we have (now or in the future) agreements or understandings that allow such marketing, we and/or such third parties may periodically send you messages of an informational, promotional, marketing, or advertising nature via email, messaging, or other means. We may share your account information or Customer Data with such parties. If you are subscribing to a paid GraphX application, you may “opt out” of receiving these messages or information sharing by sending an email to GetSupport@GraphXSys.com requesting opt out and specifying which messages you wish to opt out of. You acknowledge that by “opting out” you will not receive messages about upgrades and enhancements; however, we may still send messages of a technical nature. If you are subscribed to a free GraphX application, you agree to receive the messages described in this subsection, in consideration of us providing the Services for which you are subscribed, and you may not opt out. You agree that we may use you or your company or association name and logo in sales presentations, advertising materials, press releases, and similar marketing or promotional vehicles, and you waive and release all claims based on such use.

vi. You acknowledge that you are solely responsible for backing up your Customer Data or Content and that we do not assume any liability for the loss or corruption of any Customer Data or Content.

8. Ownership. The materials provided on this site, including but not limited to this site, its Services, Software, Customer Data or Content are protected by law, including, but not limited to, United States copyright, patent and trademark law and international treaties. The site, its Software, Services, Customer Data, Content and the patents, trademarks copyrights and all other intellectual property rights in any way related to the site, its Services, Software, Customer Data or Content are owned by us exclusively. Except for the limited rights granted in this Agreement, all rights are reserved by us, and no rights, express or implied, are assigned or transferred to you. You also acknowledge and agree that we own any amendments, improvements, continuations, suggestions, ideas, enhancements, enhancement suggestions or requests, feedback, creative or derivative works, or recommendations that you provide relating to the site, its Services, Software, Customer Data or Content or the intellectual property rights related thereto, and that you will not be entitled to any compensation or other benefit on account thereof. No license, right, or interest in our logos, trade dress, service marks, or trademarks patents, copyrights are granted to you under this Agreement or by your subscription to the site, its Services, Software, Customer Data or Content and you agree not to remove or obscure any product identification or notices of proprietary restrictions on same.

9. Subscription Term. The term of your subscription shall be specified during the registration process. You may purchase one or more additional subscriptions at any time in accordance with the terms and conditions posted at this site.

10. Termination. You agree that we may terminate your account and access to the site, its Services, Software, Customer Data or Contents : (i) without cause, in our sole discretion; or (ii) for cause, without prior notice, for any material breach of this Agreement, including without limitation, any failure to pay fees as they become due or any unauthorized use of this site, its Services, Software, Customer Data or Content, or (iii) for cause, because of requests by law enforcement or other government officials, bodies, or agencies. Termination of your account includes (i) removal of access to site, its Services, Software, Customer Data or Content, and (ii) deactivation and/or deletion of your login data, password, and all related information. You agree that we will not be liable to you or any third-party for any termination of your account, termination of your access to the Services, or deletion or deactivation of your login or other information. If we elect to terminate this Agreement for cause pursuant to clause (ii) above, we may elect, in our sole discretion, not to refund any prepaid fees or other amounts to you, and you consent to our retention of such fees or other amounts, subject to the terms and conditions set forth in this Agreement (including, without limitation, Section 28 (Arbitration)). If we elect to terminate this Agreement for cause pursuant to clause (iii) above, we may retain prepaid fees or other amounts if the third-party request for termination is based on facts that constitute a material breach of this Agreement by you, subject to the terms and conditions of this Agreement (including, without limitation, Section 28 (Arbitration)). If we elect to terminate this Agreement without cause, we will give you a prorated refund of any unaccrued, prepaid fees you have paid for the balance of the term that would have been applicable but for the termination. If you elect to terminate this Agreement on the basis of a material modification to which you do not agree, you shall give us 10 business days’ written notice of intent to terminate. We shall have to right to attempt to resolve the matter, and you agree to attempt to resolve the matter promptly and in good faith. If we have not resolved the matter within that 10-day period, then we will give you a pro-rated refund of any unaccrued, prepaid fees you have paid for the balance of the term that would have been applicable but for the termination.

11. Your Account-Related Responsibilities. You are responsible for maintaining the confidentiality of your login ID, password, and any additional information that we may provide regarding accessing your account or the site, its Services, Software, Customer Data or Content. If you knowingly share your login ID and/or password with another person who is not authorized to use the site, its Services, Software, Customer Data or Content, this Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login ID, password, account, the site, its Services, Software, Customer Data or Content, or any other breach of security. You agree not to allow any third party access to your account for purposes of using to the site, its Services, Software, Customer Data or Content under your name or otherwise, and you agree to make every reasonable effort to prevent unauthorized third parties from accessing or using your account or the site, its Services, Software, Customer Data or Content. You acknowledge that any such third-party access or use is prohibited and grounds for termination of your account and/or this Agreement for cause. You agree that we may audit your account to determine unauthorized access or use or use that exceeds your subscription. You agree to cooperate with our audit and to provide reasonable assistance and access to information. .

12. Subscription Fees; Periodic Payment; Disclosures; Free Trials.

i. You agree to pay subscription fees as specified in the registration process. Payment of subscription fees may be by credit card online at this site or by any other method approved by us. Subscription fees are non-refundable, unless expressly provided otherwise on this site. If for any reason we are unable to charge your credit card with the full amount of the fees, or if we are charged back for any fee previously charged to your credit card, you agree that we may pursue all available remedies to pursue payment, including without limitation, suspension or termination of your account and all rights to the Services. Your card charge will begin upon activation of your account, not when usage begins.

ii. You hereby authorize GraphX Systems to charge the credit card used in the registration process, as follows: charges will be for access to the GraphX application selected (and for any add-on modules selected), for the dollar amount and billing periods (including recurring billing periods and charges) specified in the registration process. If the credit card authorization fails, we will request updated credit card information. However, if you do not provide updated credit card information that successfully authorizes within 72 hours after notice, we may terminate your account and rights to all Services from this site. If we offer a free version of our application, and you are subscribed to that version, you acknowledge and agree that we reserve the right in the future to charge for any such version. If we decide to begin charging for a previously-free version of our application, we will give not less than 30 calendar days’ notice to subscribers to such free version, by posting on our website, email, SMS message and/or any other means we deem reasonable, so that subscribers to a version of our application that had been free who wish to cancel prior to charges beginning may have sufficient time to do so. You acknowledge and agree that we reserve the right to increase any recurring charges upon giving you not less than 30 calendar days’ notice.

iii. If you initially subscribed pursuant to a free-trial offer, your credit card information will be taken, but your card will not be charged until the end of the free trial. If you cancel prior to the end of the free trial, your card will not be charged. If you do not cancel prior to the end of the free trial, your card will be automatically charged upon the expiration of the free trial and on a recurring monthly basis thereafter until you either cancel or change to annual billing. We may terminate any free trial at our discretion prior to the end of the free-trial period. The limited warranty set forth in Section 16 of this Agreement does not apply during any free-trial period.

13. Technical Support; Integration. We will answer questions by live chat during our regular business hours regarding the use of the Services. Our regular business hours currently are 9 am to 5 pm Monday – Friday, New York, Eastern time, excluding holidays. Our response time will generally be within four hours after a help request is submitted through our system or the next business day if the request is submitted on a non-business day or on a business day with less than five hours remaining in the day at the time submitted. All integration and configuration requirements are your responsibility to implement and are solely at your expense. You agree to use live chat solely for the purpose of requesting technical support. Live chat is provided at no charge. We are not obligated to provide any maintenance or similar support, and we do not provide technical support for any non-GraphX applications, software, operating systems, or hardware.

14. Data Management, Use, and Security.

i. You acknowledge that we may directly and remotely communicate with devices synced to the GraphX application for purposes consistent with the provision of the Services, including, without limitation, (i) collection and consolidation of financial data from the synced application(s) (ii) verifying your credentials, (iii) issuing reports and alerts such as automated support requests and alert messages, (iv) providing upgrades, fixes, maintenance, configuration protocols, or similar actions as we deem appropriate for provisioning the Services and the Software, and (v) extracting usage information, service performance information, and infection logs. These communications may include, without limitation, SMS text messages, emails, and other push notifications.

ii. You represent and warrant that you have obtained any and all necessary permissions and consents and provided the necessary notifications to share all data and information with us that are provided to us or collected by us, including, but not limited to Customer Data for any of the purposes described in this Agreement and that providing us with such Customer Data violates no law and infringes no legal rights. ..

iii. You acknowledge that one of the Services anticipated to be added by us is benchmarking of Customer Data or Content against like-kind businesses by SIC for a given geographical area. Accordingly, in consideration of us licensing the Software to you and granting you access to the Services pursuant to the terms of your subscription, you grant us an irrevocable, perpetual license, on the terms and conditions set forth herein, to aggregate your Customer Data or Content with other data for the purpose of providing benchmarking data against which a customer can measure the performance of its or his unit(s). This license includes, without limitation, the right to market and sell such Customer Data or Content (i) for one or more benchmarking module add-ons to any of our products (now existing or offered later), (ii) providing such benchmarking data and products to third parties, for research, marketing or advertising, or (iii) for any other commercial purpose at our sole discretion. Any Customer Data or Content that is aggregated with other data for benchmarking will be anonymized and pooled with a sufficient amount of other customer data or content (including, without limitation, a sufficiently large geographical area), so that your Customer Data or Content cannot be identified or connected to you. No specific, identifiable Customer Data or Content will be made available to any third party not authorized by you to receive it (except as permitted in this Agreement). No license fee or royalty will be payable by us to you for our use of the Customer Data or Content as permitted in this Agreement. Our right to preserve and use your Customer Data or Content in anonymized form for any of the purposes set forth in this agreement will survive the termination of this Agreement. Except for the license and rights granted to us in this Agreement, you possess and retain all right, title, and interest in and to your Customer Data and Content.

iv. We will promptly notify you of any disclosure or misappropriation of Customer Data or Content (“Leak”) that comes to our attention. We will cooperate with you and with law enforcement authorities in investigating any such Leak. We will likewise cooperate with you and with law enforcement agencies in any effort to notify injured parties. You acknowledge and agree that we shall not have any liability to you for damages caused or alleged to have been caused by any Leak.
15. Service Level Agreement. We agree that the Services for any paid subscription will have an Uptime of at least 99.5% on a monthly basis. “Uptime” means access to the paid GraphX application(s), subscribed to by you, excluding periods of downtime for (i) scheduled maintenance, (ii) upgrades, (iii) a problem caused by you, your computer systems or networks, (iii) problems caused by third-parties such as but not limited to communications and power providers, (iv) taking the application offline as a defensive measure against any hacker, denial-of-service, or similar attacks, (v) your breaches of this Agreement, and/or (vi) force majeure. Your sole and exclusive remedy for a breach of the Uptime agreement in this Section 15 is a credit, in the form of an extension of service, as follows: for each period over which Uptime is calculated, for each day or partial day of downtime within that period in breach of the agreed-upon Uptime, you will receive two days of extension of the Services for which you are subscribed, at no charge.
16. Limited Warranty. We warrant that, for any paid subscription term to the site, its Services, Software, Customer Data or Content will operate in substantial conformance with the then-current advertised standards, under normal use. We will use reasonable efforts to remedy any material non-conformance in the to the site, its Services, Software, Customer Data or Content that you promptly report to us in writing and that we can reasonably identify and confirm. We will extend credit via an extension of your subscription for any Services downtime you incur as a result of our breach of this limited warranty; this credit is separate from the credit described in Section 15 (Service Level Agreement), and shall be calculated as follows: for each day or partial day of downtime caused by our breach of the limited warranty set forth in this Section 16, you will receive two days of extension of the Services for which you are subscribed, at no charge. This limited warranty does not apply to any GraphX application subscribed for on a free or trial basis. Except for any Uptime agreement contained in Section 15, this Section 16 sets forth your sole and exclusive remedy and our sole and entire liability for any breach of warranty or other duty relating to the Software or the Services. The intent of this Section 16 is to cover occurrences not covered under Section 15.If you receive a credit for an occurrence under Section 15, then no credit shall be due under this Section 16 for the same occurrence. If you receive a credit under this Section 16 for an occurrence, then no credit shall be due under Section 15 for the same occurrence. Any unauthorized modification of the to the site, its Services, Software, Customer Data or Content, tampering with the to the site, its Services, Software, Customer Data or Content, use of the to the site, its Services, Software, Customer Data or Content in a manner inconsistent with the intended uses, or any other breach of this Agreement by you voids this limited warranty and the indemnities set forth in Section 19.2.
17. Warranty Waivers and Disclaimers. EXCEPT AS MAY BE EXPRESSLY PROVIDED IN SECTION 16 OF THIS AGREEMENT, (1) THE SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA, AND CONTENT ARE PROVIDED “AS-IS” AND WITH ALL FAULTS, (2) NEITHER WE NOR ANY OF OUR LICENSORS, SUPPLIERS, REFERRAL AGENTS OR RESELLERS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA, OR CONTENT, AND (3) GRAPHX SYSTEMS AND ITS LICENSORS, SUPPLIERS, REFERRAL AGENTS AND RESELLERS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THIS SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA OR CONTENT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR DATA ACCURACY. YOU HEREBY WAIVE ANY SUCH WARRANTIES, EXPRESS OR IMPLIED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NEITHER GRAPHX SYSTEMS NOR ITS LICENSORS, SUPPLIERS, REFERRAL AGENTS OR RESELLERS REPRESENT OR WARRANT THAT THIS SITE, ITS SOFTWARE, SERVICES, CUSTOMER DATA OR CONTENT: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (C) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED, (D) WILL BE TIMLEY REPAIRED OR CORRECTED, OR (E) WILL BE FREE OF DEFECTS, VIRUSES, MALWARE OR OTHER HARMFUL COMPONENTS. THESE WAIVERS AND DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO PURCHASE, LICENSE, SUBSCRIPTION OR USE OF THE SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA, OR CONTENT OFFERED BY THIS SITE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE WAIVERS AND DISCLAIMERS. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED OR WAIVED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW AND LIMITED IN SCOPE AS REQUIRED BY APPLICABLE LAW.

18. Limitation of Liability and Exclusive Remedies. EXCEPT AS MAY BE EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GRAPHX SYSTEMS’S AGGREGATE LIABILITY FOR DAMAGES EXCEED THE GREATER OF (A) THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICES OVER THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (B) ONE HUNDRED DOLLARS. IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, QUASI-CONTRACT OR STRICT PRODUCTS LIABILITY, SHALL GRAPHX AND/OR ITS LICENSORS, SUPPLIERS, REFERRAL AGENTS OR RESELLERS BE LIABLE TO THE ANY PARTY OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, GOODWILL, WORK STOPPAGE, OR COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA, OR CONTENT, INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA OR CONTENT OR OBTAINED FROM OR THROUGH THE SITE, ITS SERVICES, SOFTWARE, CUSTOMER DATA OR CONTENT, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS, SUPPLIERS, OR RESELLERS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE.

19. Indemnities.
i. You agree to indemnify and hold us harmless from and against (i) any claims that your Customer Data infringes the intellectual property, privacy, confidentiality, proprietary, or other rights of a third party (provided that we notify you within 10 business days of any claim being made or proceeding instituted against us), (ii) any costs incurred as a result of a claim or legal proceeding brought by a third party to obtain your Customer Data, (iii) any loss, damage, or costs arising from your breach of this Agreement, and (iii) any sales taxes or other taxes arising from your use of the Services or the Software (excluding any income tax on our revenue from fees for providing the Services). You acknowledge and agree that you are solely responsible for the legality, quality, reliability, and accuracy of your Customer Data.

ii. We agree to indemnify and hold you harmless from and against any claims that our Software or Services infringe on the intellectual property rights of a third party, provided that (i) you notify us within 10 days of any claim being made or any proceedings instituted against you, (ii) you cease using the Software or the Services that are the subject of any such claim or proceeding, immediately upon written request from us, (iii) you have not breached this Agreement, and (iv) you have not acknowledged the validity of any such claim or proceeding or taken any action that might impair our ability to contest the claim or proceeding.

iii. If one party is obligated to indemnify the other party under this Section 19, the indemnifying party shall be entitled to make the decisions pertaining to defending or settling the claim, and the other party shall fully cooperate. The indemnifying party has the right to modify the item(s) that are the subject of the claim or to license third-party intellectual property so as to remove the alleged infringement (without adversely affecting functionality), or to terminate this Agreement if any such modification or licensing is deemed commercially unreasonable by the indemnifying party. If we are the indemnifying party and elect to terminate this Agreement, we will give you a pro rata refund for all unaccrued, prepaid fees if such fees equal or exceed one full month. If you are the indemnifying party and elect to terminate this Agreement, we shall be entitled to retain all fees paid by you prior to such termination, including any unaccrued, prepaid fees.

20. Confidential Information. You agree that all non-public information that we provide regarding the Services, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for purposes of exercising your rights as our customer in strict compliance with this Agreement, and you further agree not to use or disclose this confidential information for a period of five years after termination of this Agreement. We agree that all non-public information that you provide, including your Customer Data, is your proprietary confidential information, subject to our use and disclosure rights as set forth in this Agreement. We agree to use this confidential information only for purposes of exercising our rights as provider of the Services (including, without limitation, the right to use your Customer Data or Content in anonymized form for the purposes as set forth in this Agreement), and we further agree not to use or disclose this confidential information (except as permitted under this Agreement) for a period of five years after termination of this Agreement.

21. Intended For Use Only within the United States, Canada, and Australia. This site is intended for use only from within the United States, Canada, and/or Australia. We do not represent that this site is appropriate for use elsewhere. Access to this site from any location where its Contents are illegal is not authorized. If you are located outside the U.S., then the following provisions shall apply: (i) the parties confirm that this Agreement and all related documentation is and will be in the English language unless otherwise agreed to be GraphX Systems.; and (ii) you are responsible for complying with any local laws in your jurisdiction that might impact your right to import, export or use the Software, the Services, the Customer Data or the Contents of the website and you represent and warrant to GraphX Systems that you have complied with any regulations or registration procedures required by applicable law to make this Agreement, including, without limitation, the Software License Agreement contained herein, enforceable.

22. Onward Transfer of Personal Information Outside Your Country of Residence. Any personal information which we may collect on this site, and all Customer Data, may be stored and processed in servers located only in the United States. If you reside outside the United States, you consent to the transfer of personal information and Customer Data outside your country of residence to the United States.

23. Export Control. This site provides Services, Software Customer Data, Content and technologies that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. You acknowledge and agree that the site, the Software, the Customer Data and the Services shall not be used in, and none of the underlying information or technology may be transferred or otherwise exported or re-exported to, countries to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or to or by any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and regulations and assume sole responsibility for obtaining licenses to export or re-export as may be required. You agree not to export or re-export the Software in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Software from the U.S. By downloading or using the Software and/or the Services, you agree to the foregoing restrictions and represent and warrant that you will comply with these conditions.

24. Registration Data. Registration is required for you to establish an account at this site. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form (“Registration Data”), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide such Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in our sole discretion, to suspend or terminate rights to use your account. To enable us to use Registration Data internally, so that we are not violating any rights you might have in that Registration Data, you grant to us a nonexclusive license to (i) convert such Registration Data into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of using digital information, and (ii) combine the Registration Data with other Content by any method or means or in any medium whether now known or hereafter devised.

25. Monitoring. We reserve the right, but not the obligation, to monitor your access and use of this website without notification to you. We may record or log your use in a manner as set out in our Privacy Policy that is accessible through the Privacy Policy link on this site’s home page.

26. Security. You shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. We shall implement reasonable security procedures consistent with prevailing industry standards to protect data, including but not limited to personal information and Customer Data or Content, from unauthorized access by physical and electronic intrusion, provided, however, you agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data, including but not limited to personal information or Customer Data, Content or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data, including but not limited to personal information or Customer Data, Content or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at the time. We will promptly report to you any unauthorized access to your Customer Data after discovery by us, and we will use reasonable efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in your Customer Data is required, you shall be solely responsible for any and all such notifications at your expense.

27. Notices. We may give notice to you by means of (i) a general notice in your account information or, if the notice is general in nature (not specific to you), by posting on our website, (ii) electronic mail to your e-mail address on record in your Registration Data, (iii) SMS message to your telephone number on record in your Registration Data, or (iv) written communication sent by first class mail to your address on record in your Registration Data. Such notice shall be deemed to have been received upon the expiration of 48 hours after mailing by first class mail or 12 hours after posting or sending by other means. You may give notice to us (such notice shall be deemed given when received by us) by any of the following: (a) electronic mail to GetSupport@GraphXSys.com, with “Customer Notice, Attention: Director of Customer Support” in the subject line; (b) written communication sent by first class mail to our address provided in this Agreement (as it may be changed as provided in any modification of this Agreement); or (c) written communication to our address delivered by a nationally-recognized overnight delivery service. Our current address for notice is Graph X Systems & Reproductions Inc., 75 South Broadway, Suite 468, White Plains, NY 10601, in either case, addressed to the attention of “President of the Company”. Notices will not be effective unless sent in accordance with the above requirements.

28. Arbitration. Except for any action to protect intellectual-property rights or to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement shall be submitted exclusively to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in White Plains, New York, USA, and the parties agree to submit to that jurisdiction and venue. The arbitration may be conducted by telephone, teleconference or online. Both parties waive any objections or defense based on lack of personal jurisdiction or venue. The arbitrator shall apply the laws of the State of New York, USA to all issues in dispute, excluding its rules regarding conflicts of laws. The controversy or claim shall be arbitrated on an individual basis, and shall not be joined or consolidated in any arbitration or other proceeding with any claim or controversy of any other party. The findings of the arbitrator shall be final and conclusively binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Each party shall bear its own costs of arbitration, including without limitation its own attorneys’ fees. Arbitration fees shall be split equally between the parties. Enforcements of any award or judgment shall be governed by federal law or by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover reasonable attorney’s fees and costs incurred as a result of such filing.

29. Exclusive Jurisdiction and Venue; Applicable Law. The courts of Westchester County in the State of New York, USA and the nearest U.S. District Court shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. Both parties waive any objections or defense based upon lack of personal jurisdiction or venue and agree to submit to the jurisdiction of said courts. The laws of the State of New York, USA shall apply to all issues in dispute, excluding its rules regarding conflicts of law. Application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The Uniform Computer Transactions Act or any version thereof, adopted by any state, in any form (“UCITA”), shall not apply to this Agreement, and to the extent that UCITA may be applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein

30. Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.

31. Force Majeure. We shall not be liable for damages or otherwise for any delay or failure of delivery arising out of causes beyond our reasonable control, including, but not limited to, acts of God, acts of civil or military authority, fires, riots, terrorism, floods, wars, embargoes, power failures, Internet disruptions, hacker attacks, or communications failures.

32. Survival. Any provisions of this Agreement the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms, notwithstanding the expiration or termination of this Agreement.

33. U.S. Government End-Users. We provide the Software and the Services, including related technologies, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Software and/or the Services include only those rights customarily provided to the public as provided in this Agreement. This customary commercial license for the Software is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. Unpublished rights are reserved under the copyright laws of the United States.

34. Assignment. You may not transfer any of your rights to use the Software or the Services or assign this Agreement to another person or entity without first obtaining prior written approval from us. We agree not to withhold approval unreasonably. We may assign any of our rights and/or obligations under this Agreement at our sole discretion, and we agree to notify you of any such assignment.

35. Statistical Information. GraphX Systems may compile statistical information using any and all data including Customer Data, related to the performance of the Services, and may make such information publicly available, provided that such information does not disclose your confidential information. GraphX Systems retains all intellectual property and other rights in such information.

36. Independent Contractor. GraphX Systems is an independent contractor, and both parties agree that no partnership, joint venture, or employer/employee relationship exists between the parties.

37. Entire Agreement. This Agreement, our Terms of Use, and our Privacy Policy (collectively the “Website and Services Terms and Conditions”) constitute the entire understanding of the parties with respect to this site, the Software, and the Services. The Website and Services Terms and Conditions supersede all prior and contemporaneous communications, representations, and agreements. A person or entity that is not a party to this Agreement has no right to enforce any term of this Agreement, and the parties to this Agreement do not intend to create any third-party rights hereunder.