API Terms

These Graphite API Terms (“API Terms”) govern your, or the company’s or entity’s you enter these API Terms on behalf of (“you”, “your” or “Client”) use of the internal linking application programing interfaces and accompanying documentation and materials (the “Graphite API”) that are made available by Graphite Growth Inc. (“Graphite”) for the purpose of enabling your optimization of your website and related content to improve search engine ranking. Graphite is willing to grant you the rights set forth below, subject to and in accordance with these API Terms.

1. AGREEMENT TO TERMS AND CONDITIONS. These API Terms are effective, and you agree to be bound by these API Terms, as of the date you (a) first click a button or check a box titled “I accept“ or something similar, or (b) use or access the Graphite API, whichever is earlier (“Effective Date”). If you are accepting these API Terms on behalf of Client, you represent and warrant that you have the authority to bind Client to the terms and conditions of these API Terms, and, in such event, “you” will refer to Client. If you do not agree to be bound by these API Terms, or do not have the authority to bind Client to these API Terms, then do not use the Graphite API or click or check “I accept”**.
2. API RIGHTS. Subject to your compliance with the terms and conditions of these API Terms, Graphite grants you a non-exclusive, non-transferable, non-sublicensable, limited and revocable license during the Term and subject to the Applicable Metric to use the Graphite API, solely for your internal business purposes to internally link pages of your website. Graphite may audit Client’s compliance with the Applicable Metric. If an audit reveals underpayments, then Client will pay to Graphite such underpayments. “Applicable Metric” means the applicable limitation on the usage of the Graphite API as determined by your subscription tier as listed in this link.
3. RESTRICTIONS. Except as expressly authorized under these API Terms, you will not (and will not permit anyone else to): (a) use, copy, modify, sublicense or distribute the Graphite API for any purpose, (b) create any derivative works of the Graphite API; (c) disassemble, decompile or otherwise reverse engineer the Graphite API, in whole or in part, or permit or authorize a third party to do so; (d) make the functionality of the Graphite API available to any third party through any means; (e) interfere, by-pass, or disable any features or functionality that is embedded or included with the Graphite API or attempt to cloak or conceal your identity when requesting authorization to use the Graphite API; (f) use the Graphite API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights, other right of any person, or any applicable law or regulation; (g) introduce malicious software, “malware,” or other program, or data designed to disrupt the proper operation of the Graphite API or any part thereof; (h) combine or integrate the Graphite API with any software, technology, services, or materials; or (i) use the Graphite API or any information gained from the use thereof to train, calibrate, or validate, in whole or in part, any other systems, programs or platforms, or for benchmarking, software-development, or other competitive purposes, or (j) access or use the Graphite API from any country or region subject to comprehensive U.S. embargo.
4. ACCESS CONDITIONS.
   1. Access Credentials. To access and use the Graphite API, Graphite may require you to obtain a security key, private URL link, or other access credentials from Graphite (the “API Key”). You may not share the API Key with any third party and will keep the API Key secure and use the API Key as your sole means of accessing the Graphite API. You will treat the API Key as Confidential Information of Graphite.
   2. Rate Limits. You will abide by the rate limits (if any) as determined by your subscription or listed at this link regarding the access, calls and use of Graphite API and will not attempt to deliberately circumvent or exceed those rate limits without Graphite’s prior written permission.
5. OWNERSHIP; RESERVATION OF RIGHTS AND FEEDBACK. You acknowledge and agree that Graphite and its licensors own all worldwide right, title and interest in and to the Graphite API, including all intellectual property rights therein. Your rights in and to the Graphite APIs are limited to those expressly granted herein. From time to time Client or its employees, contractors, or representatives may provide Graphite with suggestions, comments, feedback or the like with regard to Graphite API or Graphite’s other products and services (collectively, “Feedback”). Client hereby grants to Graphite a perpetual, irrevocable royalty-free and fully-paid up license to use and exploit all Feedback in connection with Graphite’s business purposes, including, the testing, development, maintenance and improvement of the Graphite’s products and services, including the Graphite API.
6. SUBSCRIPTIONS; FEES AND PAYMENTS
   1. Subscriptions. The Graphite API is available through a paid subscription (a “Subscription”). BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE GRAPHITE TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you the Subscription fee (the “Subscription Fee”), exclusive of applicable taxes, and other charges, at the beginning of your Subscription, and then at the beginning of each Renewal Term, using the Payment Information (defined below) you have provided. The Fees (as defined below) are stated in US Dollars. Graphite may revise applicable Subscription Fees by providing the Client at least thirty (30) days’ notice prior to the next charge for annual Subscriptions. Client authorizes Graphite to charge Client for all applicable Fees using the Payment Information. GRAPHITE MAY CHARGE AUTOMATICALLY FOR EACH RENEWAL TERM, UNLESS THE CLIENT HAS TERMINATED THESE API TERMS IN ACCORDANCE WITH SECTION 7. By agreeing to these API Terms and electing to purchase a Subscription, Client acknowledges that the subscription has recurring payment features and accepts responsibility for all recurring payment obligations prior to cancellation of the Subscription by Client or Graphite, in accordance with these API Terms. Each Subscription continues until canceled by Client or Graphite terminates Client’s access to or use of the Graphite API, in accordance with these API Terms.
   2. Payments. You authorize us (or our third-party payment processor) to charge you for the Subscription Fee and fees for Implementation Services (collectively, “Fees”). We may ask you to supply additional information relevant to paying Fees, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. All Fees are non-cancellable, non-refundable and non-transferable except as required by law or otherwise permitted by these API Terms. We reserve the right to cancel a transaction for payment of your Subscription Fee for any reason; if we cancel your transaction, we’ll refund any amount you have already remitted to us (if any).
   3. Invoiced Payments. Graphite may issue written invoices to you on an annual basis in advance for Subscription Fees, and you will be subject to the terms of this Section 7(c). Client will pay Graphite all amounts set forth on an invoice no later than thirty (30) days following the date of such invoice. All payments of an issued invoice will be made in US Dollars by check, wire transfer of immediately available funds to an account designated by Graphite, or such other payment method mutually agreed to, and will be non-refundable. Any invoiced amounts due to Graphite hereunder and not paid when due will accrue late charges at the greater of a rate of one and a half percent (1.5%) per month or the highest rate permitted by applicable law. You will reimburse Graphite for all costs and expenses incurred (including attorneys’ fees) in collecting overdue amounts hereunder. You will not have any right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Graphite under this Agreement for any reason.
   4. Taxes. Client will be responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Client to Graphite hereunder, other than any taxes imposed on Graphite’s income. Without limiting the foregoing, in the event that Client is required to deduct or withhold any taxes from the amounts payable to Graphite hereunder, Client will pay an additional amount, so that Graphite receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
7. TERM AND TERMINATION.
   1. Term. These API Terms are effective on the Effective Date and, unless earlier terminated in accordance with the terms and conditions of these API Terms, will continue in full force and effective for 12 months (the “Initial Term”). Following the Initial Term, these API Terms will automatically renew for successive 12-month terms (each a “Renewal Term”), unless either party provides written notice of non-renewal at least 60 days prior to the end of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and all Renewal Terms are collectively the “Term” of these API Terms.
   2. Termination for Cause. You may terminate these API Terms immediately upon written notice to Graphite if Graphite materially breaches the terms and conditions of these API Terms, provided that such breach, if curable, is not cured within fifteen (15) days from receipt of notice in this regard. Graphite may terminate these API Terms immediately at any time and without notice if you breach the terms and conditions of these API Terms.
   3. Suspension. Without limiting Section 7(b), Graphite may, at any time and without liability to you, suspend or limit your access to the Graphite API in the event (i) that Graphite reasonable suspects that the Graphite API is being used in violation of any applicable law or regulation or in a manner inconsistent with these API Terms, (ii) that Graphite determines, in its sole discretion, that the Graphite API is being used in an unauthorized or fraudulent manner, (iii) that Graphite determines, in its sole discretion, that the use of the Graphite API adversely affects Graphite’s equipment or service to Graphite’s other customers, (iv) any other event which Graphite determines, in its sole discretion, may create a risk to the Graphite API or to any other users of the Graphite API. Without limitation, Graphite will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of your right to use the Graphite API in accordance with these API Terms.
   4. Effect of Termination. Upon the expiration or termination of these API Terms: (i) all licenses granted to you under these API Terms will terminate and you will cease using the Graphite API; and (ii) you will promptly return to Graphite all Confidential Information in your possession or control.
   5. Survival. The provision of Section 3, Section 5, Section 6(c), Section 7(d), this Section 7(e), Section 10, Section 11, Section 12, Section 13, Section 16, Section 17, Section 18, and Section 19 will survive the expiration or termination of these API Terms for any reason.
8. IMPLEMENTATION. Client may receive professional services from Graphite to install, implement and/or configure the Graphite API for Client (“Implementation Services”). You will provide information, make available personnel, and take other such actions as requested by Graphite that are reasonably necessary for provision of such Implementation Services. For clarity, Graphite retains all right, title and interest in and to all intellectual property rights created in the performance of the Implementation Services.
9. UPDATES AND REVISIONS. Unless otherwise agreed by the parties in writing, you are not entitled to any support from Graphite for the Graphite API. You acknowledge and agree that Graphite may update or modify the Graphite API from time to time at Graphite’s sole discretion. You are solely responsible for making any changes to your systems and/or websites required for access and use of the Graphite API as a result of any such update or modification. Details of the changes, and the necessary documentation to implement them, will be published in this link or otherwise notifying you.
10. CONFIDENTIAL INFORMATION. You may be given access to, or otherwise gain knowledge of, certain proprietary or non-public information, including software or specifications related to the Graphite API, of Graphite (collectively, “Confidential Information”). You may use Confidential Information solely to the extent necessary to use the Graphite API as permitted in these API Terms. You may not disclose any Confidential Information to any third party without Graphite’s prior written consent. You will protect Confidential Information from unauthorized use, access or disclosure in the same manner and to at least the same extent that you would use to protect your own confidential and proprietary information of similar importance, but in any event, you will use your reasonable efforts.
11. NO WARRANTY. THE GRAPHITE API IS PROVIDED “AS-IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND. GRAPHITE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE GRAPHITE API, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ANY REPRESENTATION THAT THE GRAPHITE API WILL BE FREE OF INTERRUPTION, BUG OR ERROR-FREE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
12. INDEMNIFICATION. You will indemnify, defend and hold harmless Graphite and its affiliates and their respective officers, employees and agents from and against any claims, damages and losses (including reasonable attorney fees) arising from or relating to (i) your breach of these API Terms or (ii) your use of the Graphite API in violation of these API Terms. Graphite reserves the right to retain counsel of its choosing, at its own expense, to participate in the defense and/or settlement of any claim for which Graphite seeks indemnification pursuant to this Section 12.
13. LIMITATION OF LIABILITY. IN NO EVENT WILL GRAPHITE BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE API TERMS, IMPLEMENTATION SERVICES OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE GRAPHITE API OR FOR ANY ERROR OR DEFECT IN THE GRAPHITE API, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT GRAPHITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE API TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. CHANGES TO THESE API TERMS. Graphite may update these API Terms from time to time in its sole discretion by posting a notice on this link or by otherwise notifying you. If you do not agree to be bound by the changes, you must stop using the Graphite API. If you continue to use the Graphite API after we have posted updated API Terms it means that you accept and agree to the changes.
15. TRADEMARKS; PUBLICITY. If requested by Graphite, Client may grant to Graphite a non-exclusive license to use and display Client’s logos, trademarks and other identifiers for marketing or promotional purposes, including in communications with existing or potential customers, as applicable, and in connection with case studies or other publications or marketing materials publicizing Client’s use of the Graphite API. Client agrees to in connection with its use of the Graphite API include limited “co-branding” with Graphite by stating its website is “powered by Graphite” and including a link to a Graphite landing page or website as designated by Graphite, or such other similar co-branding as mutually agreed to by the parties in writing. Graphite hereby grants to Client a limited, non-exclusive, royalty-free, revocable license to display Graphite’s name and designated trademarks and logos (“Graphite Marks”) during the Term in connection with the approved co-branding contemplated in this Section. All goodwill and improved reputation generated by Client’s use of the Graphite Marks inures to the exclusive benefit of Graphite.
16. COMPLIANCE WITH TRADE CONTROLS. Client represents and agrees that it is not, and will not permit exports, re-exports or transfers to third parties who are: (1) subject to the restriction of a sanctions or export denial list, including, but not limited to, the U.S. Specially Designated Nationals and Blocked Persons (“SDN”) List and the U.S. Entity List, Unverified List and Denied Persons List; (2) any individual or entity ordinarily resident in or organized under the laws of a region subject to a comprehensive U.S. embargo (presently including Cuba, Iran, Syria, North Korea and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine); (3) using Graphite’s product or service for any purpose prohibited by applicable export control and sanctions laws and regulations, including, but not limited to, nuclear, chemical, or biological weapons proliferation, rocket, missile or unnamed aerial vehicle systems for use in delivering weapons, use in nuclear facilities not subject to IAEA safeguards, other restricted nuclear activities, military-intelligence, unauthorized surveillance activities or human rights abuses, for a military end user or end use in a country subject to an arms embargo, or activities in China relating to supercomputers and production of specific types of advanced chips; or (4) a party requiring Graphite to obtain a government license or authorization under the applicable export control and sanctions laws in order to provide, export, re-export, or transfer its products and services.
17. US GOVERNMENT END USERS. The Graphite API and related software and documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in these API Terms as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Graphite API, related software or documentation.
18. ASSIGNMENT. You may not assign or transfer these API Terms, by operation of law or otherwise without Graphite’s prior written consent. Any attempt to assign or transfer these API Terms without such consent will be void. Graphite may freely assign these API Terms. Subject to the foregoing, these API Terms are binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns.
19. GENERAL. These API Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under these API Terms will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein. If any provision of these API Terms is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of these API Terms will remain in full force and effect. Either party’s failure to enforce any provision of these API Terms will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these API Terms will be effective unless it is in writing and signed by the party granting the waiver. These API Terms constitute the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. All notices to you will be sent to your email address provided with your Payment Information (or such updated address as may has been provided by notice to Graphite). In the case of Graphite, all notices will be sent to [email protected]. Any notice, request, instruction, or other document to be given under these API Terms will be in writing and will be deemed given when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party. Graphite is an independent contractor and nothing in these API Terms will be construed to create an employment, partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. If any action is necessary to enforce the terms of these API Terms, the substantially prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses (regardless of whether such costs and expenses are otherwise recoverable) in addition to any other relief to which such prevailing party may be entitled. Client acknowledges that irreparable harm and significant injury that would be difficult to ascertain and would not be compensable by damages alone may be suffered by Graphite in the event that Client breaches or threatens breach of any of its obligations or restrictions under these API Terms, including with respect to Graphite’s intellectual property rights and Confidential Information, and including the license restrictions set forth in Section 3. Accordingly, Client agrees that, in addition to any other rights and remedies that Graphite may have at law or otherwise with respect to such a breach, Graphite will have the right to seek specific performance, injunction or other appropriate equitable relief. Captions of the articles, sections and subsections of these API Terms are for reference purposes only and do not constitute terms or conditions of these API Terms and will not limit or affect the meaning or construction of the terms and conditions of these API Terms. For purposes of these API Terms, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. Words importing the singular include the plural and vice versa.