Terms of Service

GradeCam Terms and Conditions

GradeCam, LLC (“GradeCam”) provides the Service specified in an [order form between the parties] (each, an “Order”). By executing an Order, Customer agrees that these Terms and Conditions govern Customer’s use of the Service and form a binding agreement between Customer and GradeCam (“Agreement”).

1.0       Services. GradeCam agrees to grant Customer a non-exclusive, non-sublicensable, non-transferable, limited right to access and use the Service(s) specified in the applicable Order(s) in connection with the scope of use and/or volumes specified therein. Unless otherwise specified in the Order, such use is limited to Customer’s internal use only. For purposes of clarification, GradeCam is providing Customer with the right to access the Service as hosted by (or on behalf of) GradeCam, and is not providing Customer with access to the underlying software or technology.

2.0       Customer Obligations.

2.1       Customer is responsible for all information inputted, edited, authored or otherwise submitted by Customer or any authorized users through the Service, including all Customer content and data. As between Customer and GradeCam, Customer will be responsible for the accuracy, truthfulness, consistency and completeness of all content and information supplied by or on behalf of Customer (collectively, “Customer Data”). Customer is solely responsible for obtaining all necessary rights and consents to enter the Customer Data into the Service, and warrants that providing such Customer Data to GradeCam under this Agreement will not violate or infringe the rights of any third party. Additionally, Customer acknowledges and agrees that the Service is not intended for use with sensitive personal information. Customer shall not submit any material or otherwise sensitive personal information in connection with Customer’s use of the Service. For purposes of clarification, names, email addresses and phone numbers are not considered sensitive personal information.

2.2       In order to access the Service, Customer may be asked to create a GradeCam account. Customer shall not use, and shall restrict its authorized users from using, another user’s account without permission. Customer shall also keep its and its authorized users’ account passwords secure. Furthermore, GradeCam reserves the right to terminate or suspend Customer’s account if it determines, in its sole discretion, that Customer has breached any material terms of this Agreement.

2.3       Customer shall not or request any third party to: (i) copy, modify, or create derivative works or improvements of the Service in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any part of the Service to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part; (iv) bypass or breach any security device or protection used by the Service or access or use the Service other than by an Authorized User through the use of his or her own credentials; (v) input, upload, transmit, or otherwise provide to or through the Service, any information or materials that are infringing, libelous or otherwise unlawful, injurious or in violation of third party privacy rights, or contain, transmit, or activate any viruses or other malicious code; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner, the Service, or GradeCam’s provision of services to any third party, in whole or in part; (vii) fail to reproduce, remove, delete, alter, or obscure any disclaimers relating to, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from, any part of the Service, including any copy thereof; (viii) access or use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; (ix) access or use the Service for purposes of competitive analysis of the Service, the development, provision, or use of a competing software service or product or any other purpose that is to GradeCam’s detriment or commercial disadvantage; and (x) assert or encourage, assist or authorize any others to assert any claims of patent or intellectual property infringement against GradeCam or any of its vendors, customers, end users, licensors, sublicensees or transferees.

3.0       Fees.

3.1       Fees for the Service will be payable as invoiced in accordance with the applicable Order. Subject to any terms specified in the applicable Order, GradeCam may increase the fees under each Order once in each twelve (12) month period upon thirty (30) days prior written notice to Customer. Unless otherwise specified in the applicable Order, on an annual basis from the effective date of the applicable Order, the parties shall perform a true-up to account for any additional usage beyond the baseline specified in the Order. The overage cost for such additional usage will be invoiced by GradeCam.

3.2       Fees stated in the Orders do not include applicable taxes. Customer agrees to bear and be responsible for the payment of all taxes, except for taxes based upon GradeCam’s income, including but not limited to, all sales, use, rental receipt, personal property, customs duties or levies or other taxes, which may be levied or assessed in connection with this Agreement. Customer shall pay such tax when due or reimburse GradeCam as GradeCam may request. If any tax is required to be paid by GradeCam, the full amount of such tax, will be billed to Customer separately, whether or not this Agreement is then in effect, and promptly paid by Customer.

3.3       Customer shall pay all invoices within thirty (30) days of the invoice date except as otherwise provided in an Order. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) GradeCam may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable laws; and (b) GradeCam may suspend access to the Service.

4.0       Term and Termination.

4.1       Each Order shall specify the initial term of the applicable Service. Unless otherwise specified in the Order, each such term shall automatically renew for additional twelve (12) month periods unless either party notifies the other that this Agreement will not renew upon at least thirty (30) days prior to the expiration of the then current term.

4.2       Either party may terminate this Agreement, or any Order: (a) for a material breach by the other party that is not cured within thirty (30) days after written notice of such material breach; or (b) if the other party becomes insolvent or bankrupt or ceases to do business. GradeCam can suspend or terminate this Agreement, any Order, or Customer’s access to the Service for Customer’s uncured material breach of this Agreement without incurring any resulting obligation or liability (including any obligation to provide a refund).

4.3        Neither expiration nor termination of this Agreement shall terminate those obligations and rights of the parties pursuant to provisions of this Agreement which by their express terms are intended to survive and such provisions shall survive the expiration or termination of this Agreement. Without limiting the foregoing, the respective rights and obligations of the parties under Sections 4.3, 5, 6, 7, 9, 10 and 11 shall survive the expiration or termination of this Agreement regardless of when such termination becomes effective.

5.0       Confidentiality.

5.1       Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information, and other materials that are clearly marked “CONFIDENTIAL” or “PROPRIETARY” by the Disclosing Party or would be reasonably deemed confidential or proprietary given the circumstances surrounding its disclosure. Without limiting the foregoing, all GradeCam technology and the financial terms of the Order(s) and this Agreement are the Confidential Information of GradeCam. However, the confidentiality obligations of the parties shall not apply to information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference or access to or use of any Confidential Information. If the Receiving Party is compelled by subpoena or applicable law to disclose any Confidential Information, then, the Receiving Party shall: (y) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (z) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or the Receiving Party remains required to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances that such Confidential Information will be afforded confidential treatment.

5.2       The Receiving Party shall: (a) only access or use Confidential Information as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (b) not disclose or permit access to Confidential Information other than to its employees, agents and contractors who have a need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under this Agreement and have been informed of the confidential nature of the Confidential Information; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own sensitive information and in no event less than a reasonable degree of care; and (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure.

6.0       Ownership

6.1       “Customer Data” refers to all information, data and content that is entered into the Service by Customer or its authorized users. As between Customer and GradeCam, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to the Customer Data, including all intellectual property rights relating thereto.

6.2       As between Customer and GradeCam, GradeCam retains all ownership of, and all intellectual property rights, in the Service and all software, equipment, processes and facilities utilized by or on behalf of GradeCam to provide the Service. All rights related to the Service that are not expressly granted to Customer under this Agreement are reserved by GradeCam. If Customer elects to provide any suggestions, recommendations, enhancement requests or other feedback, GradeCam, its licensors and service providers have the perpetual right, but not the obligation, to use such feedback in any way without restriction or obligation to Customer.

6.3       GradeCam and its service providers and licensors may collect certain information about usage of the Service, such as data related to workflows, test volumes, configurations and log data (collectively, “Usage Data”). Notwithstanding any other provision of this Agreement, GradeCam and its service providers and licensors will have the perpetual right, during and after the term, to use de-identified data to compile, analyze, combine and/or aggregate such de-identified data with other data in aggregate form such that the data does not identify Customer or individuals (“De-Identified Data”).  GradeCam may retain the De-Identified Data and Usage Data, and such data shall not be considered Customer’s Confidential Information.

7.0       Warranties; Disclaimers.

7.1       GradeCam represents and warrants that the Service will perform in accordance with the applicable documentation and the services will be performed in a timely, competent, professional, and workmanlike manner.  As Customer’s sole and exclusive remedy for breach of the preceding warranty, GradeCam will provide a correction or workaround for the Service and/or re-perform without charge any service which does not comply with such warranty so long as Customer notifies GradeCam of the issue within thirty (30) days of performance of the applicable service.

7.2       EXCEPT AS SPECIFICALLY SET FORTH ABOVE, THE SERVICES ARE PROVIDED “AS IS.”  GRADECAM, ITS LICENSORS AND SERVICE PROVIDERS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND GRADECAM EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. GradeCam does not warrant that: (a) the Service or the operation of any of the Service shall be uninterrupted or error free or (n) it will continue to support any particular feature of the Service. Customer acknowledges and agrees that GradeCam and its licensors are not responsible for: (i) the accuracy or integrity of any Customer Data submitted by Customer or its authorized users, (ii) Customer’s connectivity to the Service, or  (iii) any downtime, loss or corruption of data that occurs as a result of transmitting or receiving data or viruses via the internet or other network outages.

8.0       Security. Each party will maintain commercially reasonable and appropriate administrative, technical, and physical safeguards to help to ensure the security of its systems and the Service, and protect against the unauthorized access thereto. In the event that either party becomes aware of unauthorized access to the Customer Data in the Service, such party shall promptly notify the other party and cooperate in any investigation.

9.0       Infringement Indemnification. Each party will defend, indemnify and hold the other party harmless from any loss, cost, and expense in connection with a third party claim that the Service (in the case of GradeCam as the indemnitor) or the Customer Data (in the case of Customer as indemnitor) infringes any United States patent, trade secret, trademark, copyright or any other intellectual property right of any third party. 

10.0      Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE SERVICES OR THE PERFORMANCE OR NONPERFORMANCE OF THE FOREGOING, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF CUSTOMER’S USE OF, OR INABILITY TO USE, THE SERVICE, OR THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES.  GRADECAM’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE ORDER TO WHICH THE CLAIM RELATES, DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.

11.0      Miscellaneous

11.1      Public Announcements. Customer grants GradeCam the right to use Customer’s name, logo, trademarks and/or trade names in press releases, product brochures, sales presentations, financial reports and on its websites indicating that Customer is a customer of GradeCam. All other public statements or releases shall require the mutual consent of the parties.

11.2      Independent Contractor. The relationship of the parties hereunder is that of independent contractors, and neither party shall be considered to be a partner, joint venture, employer or employee of the other under this Agreement. This Agreement creates no agency in either party, and neither party has any authority whatsoever to bind the other party in any transaction or make any representations on behalf of the other party.

11.3      Governing Law; Arbitration. This Agreement shall be governed and construed in accordance with the laws of the State of California without regard to its conflicts of laws principles. The parties further agree that the party which substantially prevails in a dispute shall be entitled to an award of attorneys fees and costs. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled in Alameda, California, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. The prevailing party in any action or proceeding to enforce the terms of this Agreement shall be entitled to an award of its reasonable attorneys’ fees and costs.

11.4      Assignment. Neither party may assign this Agreement, or any of its interest herein, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that no such prior approval shall be required for an assignment in connection with a sale of all or substantially all of a party’s business related to the subject matter of this Agreement or any merger, sale of a controlling interest or other change of control of such party. Notwithstanding anything to the contrary herein, Customer may not assign this Agreement (whether through sale of assets, merger, or change of control) to any competitor of GradeCam. This Agreement shall apply to and bind the permitted successors and assigns of the parties.

11.5      Force Majeure. Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications. The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of this Agreement.

11.6      General. This Agreement supersedes all previous discussions, negotiations, understandings and agreements between the parties with respect to its subject matter, and constitutes the entire Agreement between the parties. No oral statements or prior written material not specifically incorporated herein shall be of any force and effect, and no changes in or additions to this Agreement shall be recognized unless incorporated herein by amendment as provided herein and signed by authorized representatives of both parties. This Agreement shall not be subject to, and shall supersede, any terms and conditions included in Customer’s forms (e.g., purchase orders).  The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof. In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms. With respect to any unenforceable provision, the applicable arbitrator or court shall deem the provision modified to the extent necessary, in such adjudicator’s opinion, to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties set forth herein.