Welcome, and thank you for your interest in Gradient Technologies, Inc. (“Gradient”) and our website and services at www.gradient.io, along with the related websites, networks, applications, and other services provided by Gradient (collectively, the “Gradient Services”). The “Gradient Services” includes any data or information made available to Subscriber through use of the Gradient Services. These Terms of Service are a legally binding contract between you (“Subscriber”) and Gradient regarding your use of the Gradient Services.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE GRADIENT SERVICES, SUBSCRIBER AGREES THAT SUBSCRIBER HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO USE OF THE GRADIENT SERVICES, AGREES TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS (THESE “TERMS”). If Subscriber is not eligible, or does not agree to the Terms, then Subscriber does not have Gradient’s permission to use the Gradient Services. SUBSCRIBER’S USE OF THE GRADIENT SERVICES, AND GRADIENT’S PROVISION OF THE GRADIENT SERVICES TO SUBSCRIBER, CONSTITUTES AN AGREEMENT BY GRADIENT AND BY SUBSCRIBER TO BE BOUND BY THESE TERMS.
Subscriber must be at least 18 years old to use the Gradient Services. By agreeing to these Terms, Subscriber represents and warrants to Gradient that: (a) Subscriber is at least 18 years old; (b) Subscriber has not previously been suspended or removed from the Gradient Services; and (c) Subscriber’s registration and use of the Gradient Services is in compliance with any and all applicable laws and regulations. If Subscriber is an entity, organization, or company, the individual accepting these Terms on Subscriber’s behalf represents and warrants that they have authority to bind Subscriber to these Terms and Subscriber agrees to be bound by these Terms.
2. ACCOUNTS AND REGISTRATION
When registering for an account on the Gradient Services, Subscriber may be required to provide Gradient with certain information, such as Subscriber’s name, email address, or other contact information. Subscriber agrees that the information provided to Gradient is accurate and that Subscriber will keep it accurate and up-to-date at all times. Subscriber is solely responsible for maintaining the confidentiality of Subscriber’s account and password, and Subscriber accepts responsibility for all activities that occur under Subscriber’s account.
3. THE GRADIENT SERVICES
3.1 Use of the Gradient Services. Gradient grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) right during the Subscription Term to use the Gradient Services solely in connection with Subscriber’s internal business operations.
3.2 Use of the Documentation. Gradient grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) license, without right of sublicense, during the Subscription Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Gradient Services in accordance with these Terms. “Documentation” means Gradient-provided user documentation, in all forms, relating to the Gradient Services (e.g., user manuals, on-line help files).
3.3 Gradient Score. Gradient may make available to Subscriber features or functionality of the Gradient Services to generate a “Gradient Score” for Subscriber. Gradient may, in its sole discretion, provide the Gradient Score free of charge. If Subscriber is not a paying subscriber of the Gradient Services, the rights granted to Subscriber in these Terms are limited solely to the extent necessary for Subscriber to receive a Gradient Score. Gradient has no obligation to provide a Gradient Score, and Gradient will have no liability to anyone for failing to offer a Gradient Score or for terminating an account, with or without notice, used solely to receive a Gradient Score. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT GRADIENT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND CONCERNING ANY GRADIENT SCORE, AND GRADIENT WILL HAVE NO LIABILITY IN CONNECTION WITH ANY GRADIENT SCORE.
3.4 Support Services. During the Subscription Term, and for so long as Subscriber is current with its payment of the fees due in connection with these Terms, Gradient will use reasonable efforts to provide Subscriber with technical support services relating to the Gradient Services by email from 9am-5pm Pacific, Monday through Friday, excluding holidays. Gradient has no obligation to provide any support or services in connection with any Gradient Score or use of the Gradient Services.
3.5 Use Restrictions. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) use the Gradient Services for any illegal purpose or in violation of any local, state, national, or international law; (b) violate any right of a third party, including by infringing or misappropriating any third party intellectual property right; (c) rent, lease, or otherwise permit third parties to use the Gradient Services or Documentation; (d) use the Gradient Services to provide services to third parties (e.g., as a service bureau); (e) use the Gradient Services for any benchmarking activity or in connection with the development of any competitive product; (f) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization of the Gradient Services (except to the extent that applicable law prevents the prohibition of such activities); (g) use or access the Gradient Services in a manner that materially impacts or burdens Gradient or Gradient’s servers and other computer systems, or that interferes with Gradient’s ability to make available any product or service to any third party; (h) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other account on the Gradient Services without permission; or (i) circumvent or disable any security or other technological features or measures of the Gradient Services.
3.6 Compliance with Laws. Subscriber will use the Gradient Services and Documentation in compliance with all applicable laws and regulations.
3.7 Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Gradient Services and Documentation and immediately notify Gradient at email@example.com of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Gradient Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Gradient to prevent or terminate unauthorized use of the Gradient Services or Documentation.
3.8 Third Party Services.
(a) The Gradient Services may provide tools that enable the import and export of information, including Subscriber Data, from and to third party services, including through features that link Subscriber’s account on the Gradient Services with the third party service, such as Amazon. Subscriber agrees that Gradient may transfer that information from and to the applicable third party service in connection with providing the Gradient Services to Subscriber. Subscriber will obtain all permissions or approvals from each applicable third party service as may be necessary or required to transfer such information to the Gradient Services. Third party services are not under Gradient’s control, and, to the fullest extent permitted by law, Gradient is not responsible for any third party service’s use of Subscriber’s exported information.
(b) To the extent that the Gradient Services includes or is accompanied by third-party software or other products (e.g., data analysis and visualization tools) that Gradient provides to Subscriber or that is otherwise required to use properly the Gradient Services (“Third Party Products”), the Third Party Products and their use by Subscriber are subject to all license and other terms that accompany such Third Party Products. Subscriber will abide by and comply with all such terms.
3.9 Additional Features. Subscriber acknowledges that: (a) not all of the features or functionality of the Gradient Services may be available at Subscriber’s subscription level regardless of whether such feature or functionality is described in the Documentation; (b) Gradient may develop or make available additional features or functionality of the Gradient Services at a later date; and (c) access to such features or functionality may require payment of additional fees.
3.10 Reservation of Rights; Ownership. Subscriber will not have any rights to the Gradient Services or Documentation except as expressly granted in these Terms. Gradient reserves to itself all rights to the Gradient Services and Documentation not expressly granted to Subscriber in accordance with these Terms. Gradient owns all right, title, and interest, including all intellectual property rights, in and to: (a) the Gradient Services, the Documentation, any other Gradient product or services, and any improvements to the Gradient Services, the Documentation, and any other Gradient products or services, including any improvements made: (i) for or at the request of or in collaboration with Subscriber; or (ii) as a result of Gradient’s use or processing of Subscriber Data; and (b) data and information that is generated by the Gradient Services, including as a result of the use or processing of Subscriber Data.
3.11 Feedback. If Subscriber provides any feedback to Gradient concerning the functionality and performance of the Gradient Services (including identifying potential errors and improvements), Subscriber hereby grants Gradient an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such feedback in any manner and for any purpose, including to improve the Gradient Services and create other products and services, without payment or restriction.
4. FEES AND PAYMENT
4.1 Fees and Payment Terms.
(a) Subscriber will pay Gradient the fees and other amounts due for the orders Subscriber makes for the Gradient Services and any level of service that Subscriber selects, plus any applicable sales, use, excise, or other taxes (“Subscription Fees”). Subscription Fees shall be payable on a monthly basis in advance and the Subscriber’s account shall automatically be debited. Gradient may increase the Subscription Fees for any renewal Subscription Term (as set forth in Section 5.2) by providing at least thirty (30) days’ notice prior to the end of the then-current Subscription Term. Unless otherwise agreed upon by the parties in writing, all Subscription Fees are non-refundable.
(b) Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Gradient to collect any amount that is not paid when due. All amounts payable under these Terms are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
4.2 Taxes. Other than net income taxes imposed on Gradient, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from these Terms. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Gradient after all such taxes are paid are equal to the amounts that Gradient would have been entitled to in accordance with these Terms as if the taxes did not exist.
5. TERM AND TERMINATION
5.1 Term. These Terms are effective beginning when Subscriber accepts the Terms or first downloads, installs, access, or uses the Gradient Services and will continue until terminated in accordance with these Terms.
5.2 Subscription Term. Subscriber’s subscription to the Gradient Services will commence on the start date specified when Subscriber orders the Subscription Services, or if no start date is specified, upon Subscriber placing the order for the Gradient Services (“Subscription Term”). The Subscription Term will automatically renew for additional one-year terms unless either party provides notice of non-renewal at least 30 days’ prior to the end of the then-current Subscription Term. Upon the expiration or termination of the Subscription Term, Subscriber’s right to access the Gradient Services will automatically terminate.
5.3 Termination for Convenience. Either party may terminate these Terms for any reason or for no reason by giving the other party 30 days’ prior written notice.
5.4 Termination for Material Breach. Either party may terminate these Terms if the other party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.4 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Gradient may, without limitation to any of its other rights or remedies, suspend performance of the Gradient Services until it receives all amounts due.
5.5 Effect of Termination. Upon the expiration or termination of these Terms for any reason: (a) access to the Gradient Services will automatically terminate; (b) all outstanding payment obligations of Subscriber become due and payable immediately; and (c) the following provisions will survive the expiration or termination of these Terms: Sections 3.10, 3.11, 5.5, 6, 7, 8, 9, 10, and 11.
6. SUBSCRIBER DATA
6.1 Ownership. Subscriber retains all right, title, and interest, including all intellectual property rights, in and to any data or information that Subscriber uploads or inputs into the Gradient Services or otherwise makes available to Gradient (“Subscriber Data”). Subscriber may download any Subscriber Data made available through the features and functionality of the Gradient Services, but Gradient otherwise has no obligation to provide to Subscriber a copy of any Subscriber Data stored on the Gradient Services
6.2 License Grant. Subscriber hereby grants Gradient a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, and store the Subscriber Data: (a) during the Subscription Term, for the purpose of exercising Gradient’s rights and performing its obligations under these Terms; and (b) in perpetuity, in a form that does not identify Subscriber as the source thereof, for Gradient’s business purposes, including to develop and improve Gradient’s products and services or those of its affiliates.
6.3 Representations and warranties. Subscriber represents and warrants that: (a) Subscriber has all rights necessary to grant Gradient the licenses set forth in Section 6.2 and to enable Gradient to exercise its rights under these Terms; (b) Subscriber’s collection and use of any Subscriber Data in connection with the Gradient Services complies with all applicable privacy and data protection laws, rules, and regulations (collectively, “Privacy Laws”); and (c) the Subscriber Data, and the use of the Subscriber Data as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) cause Gradient to violate any Privacy Laws or any other law or regulation.
6.4 Information Security. Gradient will implement commercially reasonable organizational and technical measures that are designed to prevent unauthorized or unlawful access, use or disclosure of Subscriber Data.
7. MODIFICATION OF THESE TERMS
Gradient reserves the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies Subscriber’s rights or obligations, Gradient may require that Subscriber accepts the modified Terms in order to continue to use the Gradient Services. Material modifications are effective upon Subscriber’s acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 7, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
GRADIENT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. GRADIENT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. GRADIENT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE GRADIENT SERVICES. GRADIENT DOES NOT WARRANT THAT THE GRADIENT SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE GRADIENT SERVICES WILL BE SECURE OR UNINTERRUPTED. GRADIENT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE GRADIENT SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE GRADIENT SERVICES WILL ALWAYS BE AVAILABLE. GRADIENT EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE GRADIENT SERVICES.
9. SUBSCRIBER INDEMNIFICATION
9.1 Defense. Subscriber will defend Gradient from any actual or threatened third party claim, proceeding, or suit (“Claim”) arising out of or based upon Subscriber’s use of the Gradient Services or Subscriber's breach of any of the provisions of these Terms. Gradient will: (a) give Subscriber prompt written notice of the Claim; (b) grant Subscriber full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Gradient will not defend or settle any Claim without Subscriber’s prior written consent. Gradient will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
9.2 Indemnification. Subscriber will indemnify Gradient from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Gradient in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Gradient in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 9.1.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, GRADIENT WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR THE GRADIENT SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF GRADIENT WAS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL GRADIENT’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR THE GRADIENT SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATOR OF (A) THE TOTAL AMOUNT PAID BY SUBSCRIBER TO GRADIENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (B) $500.
10.3 Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY GRADIENT TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
11.1 Relationship. Gradient will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of these Terms.
11.2 Assignability. Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by Subscriber, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Gradient. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
11.3 Confidentiality. Gradient and Subscriber undertake that it will not at any time disclose to any person not explicitly mentioned in these Terms, except its professional representatives or advisors or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of the other party (including the other party’s affiliates) which is disclosed to it by the other party. If such disclosure is required by law or any legal or regulatory authority, the party required by the authority shall give the other party written notice of such disclosure as soon as possible prior to making the disclosure and upon request, shall assist the other party in obtaining a protective order or other relief.
11.4 Subcontractors. Gradient may utilize a subcontractor or other third party to perform its duties under these Terms so long as Gradient remains responsible for all of its obligations under these Terms.
11.5 Consent to Electronic Communications. By using the Gradient Services, Subscriber consents to receiving certain electronic communications from Gradient. Subscriber agrees that any notices, agreements, disclosures, or other communications that Gradient sends to Subscriber electronically will satisfy any legal communication requirements, including that those communications be in writing.
11.6 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
11.7 Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in New York County in connection with any action arising out of or in connection with these Terms or the Gradient Services.
11.7 Waiver. The waiver by either party of any breach of any provision of these Terms does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
11.8 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Gradient Services under these Terms is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Gradient Services will immediately terminate.
11.9 Entire Agreement. These Terms, together with any agreements executed by the parties that incorporate these Terms, are the complete expression of the agreement between these parties regarding Subscriber’s use of the Gradient Services. These Terms supersede, and these Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not affect the validity of any agreements between the parties relating to professional services relating to the Gradient Services that Gradient may provide.