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Mobile App Terms of Use

Last Update: October 22, 2018

GRAPHITE MOBILE APP TERMS OF USE

BY DOWNLOADING OR USING THIS GRAPHITE MOBILE APPLICATION AND ANY UPDATES THERETO (“MOBILE APP”), YOU AGREE TO THESE TERMS (“TERMS OF USE”). IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU DO NOT HAVE A LICENSE TO THE MOBILE APP AND YOU SHOULD DELETE IT FROM YOUR MOBILE DEVICE. IF YOU ARE A RESIDENT OF THE EUROPEAN ECONOMIC AREA, BY AGREEING TO THESE TERMS OF USE, YOU EXPRESSLY AGREE TO WAIVE YOUR RIGHT TO WITHDRAW.

Changes to These Terms of Use

Graphite may amend these Terms of Use at any time in its discretion. Such amendments shall be effective immediately upon posting of the amended Terms of Use within the Mobile App or in the app store from which the Mobile App may be downloaded, whichever occurs first. Following such posting or notice by any of the methods described above, continued use of the Mobile App means you accept and agree to the amended Terms of Use. If you do not agree to the amended Terms of Use, Graphite may not be able to provide updates, upgrades, or enhancements to your Mobile App, and you may not be able to continue using it.

Permitted Use and Restrictions

You may install and use the Mobile App, for personal and non-commercial purposes solely on any compatible mobile device that you own or control and as permitted herein. The Mobile App is protected by copyright or other intellectual property laws and treaties and are subject to these Terms of Use. This license does not grant any rights to obtaining software upgrades or updates.

You are solely responsible for ensuring system compatibility between your device and the Mobile App. Copying or redistribution of any content accessed through the Mobile App is strictly prohibited. You may not use the Mobile App to access any content outside of the country or location authorized by Graphite or the third party who provided such content. Except as expressly provided herein, you do not acquire any rights in or to the Mobile App or the content, nor do you acquire any rights in any confidential information or trade-secrets. All rights not expressly granted to you herein are reserved by Graphite or its applicable licensors. You may not remove, obscure, or alter any trademark, logo, copyright or other proprietary notice from any content or the Mobile App.

You may not (a) copy, assign, sublicense, lease, sell, rent, transfer or distribute the Mobile App, (b) modify, adapt, translate, or create derivative works of the Mobile App (except only to the extent any of the foregoing restriction is prohibited by applicable law; (c) decompile, disassemble, reverse engineer or otherwise derive source code from the Mobile App, except to the extent such actions cannot be prohibited under applicable law because they are essential to achieve inter-operability of the Mobile App with another software program, and provided that the information obtained by you during such activities is (i) used only to achieve such inter-operability; (ii) not disclosed without Graphite’s prior written consent; and (iii) not used to create any software that is substantially similar to the Mobile App; (d) defeat, bypass, circumvent or interfere with any security mechanism or access control measures, or (e) have any of the foregoing done for you by a third party. This license does not include the right to receive upgrades or updates to the Mobile App. Your right to use the Mobile App will immediately terminate upon your breach of these Terms of Use.

Graphite Content and Availability

Content viewed through the Graphite Services is protected by copyright or other intellectual property laws and treaties and is subject to these Terms of Use and the terms of use of the content provider. These Terms of Use do not grant you the right to copy, distribute, prepare derivative works or publicly display such content. Any rights in the content not expressly granted to you are reserved by the content provider. You may not engage in or facilitate unauthorized access to or use of the content.

You only have access to content that has been authorized for the country with respect to which you have established your Graphite account, and such content will vary by geographic location or country. Some of the content providers use technologies to verify your geographic location, and you may not be able to access any content outside of the country or location authorized by Graphite or such content providers. You understand that the display quality of the content being streamed by your device may vary from device to device, and may be affected by many factors, including your Internet speed and your location. From time to time, Graphite may temporarily suspend your account access or our service for maintenance and repair. Access to the Mobile App and content requires Internet connectivity. Depending on your contract with your Internet provider, you may incur additional data charges from your provider when you access the Graphite Services on your Mobile App.

Graphite may add or remove content and/or content providers from time to time without notice to you. Content providers may also add or remove content from time to time without notice to you or Graphite. Graphite reserves the right to remove or restrict, from your device, access to any and all content if Graphite has reason to believe that the device linked to your Graphite account is stolen, hacked or compromised, or that the content is not properly authorized or licensed, violates any law, or has been offered by a content provider in violation of any agreement between the content provider and Graphite. Graphite may also terminate, suspend or place any account on hold in order to protect itself and its partners from what it believes to be fraudulent or illegal activity. You are responsible for ensuring that any age-restricted content is not viewed by any person not meeting the applicable age limits, as specified by law, regulation or the content provider.

Mobile App Updates

IN ITS SOLE DISCRETION, GRAPHITE MAY ISSUE UPDATES TO THE MOBILE APP IN PARTICIPATING APP STORES, WHICH MAY AFFECT YOUR USE OF THE MOBILE APP ON YOUR DEVICE (INCLUDING BUG FIXES AND UPDATES, CHANGES IN THE USER INTERFACE OR HOW YOU ACCESS CONTENT, AND OTHER CHANGES THAT MAY ADD, ALTER OR REMOVE FUNCTIONALITIES AND FEATURES). YOU MAY HAVE TO DOWNLOAD THE LATEST VERSION OF THE MOBILE APP AND ACCEPT ANY ACCOMPANYING CHANGES TO THE TERMS OF USE BEFORE YOU ARE ABLE TO CONTINUE TO USE THE MOBILE APP. IF YOU DECLINE A MOBILE APP UPDATE, YOU MAY NOT BE ABLE TO ACCESS OR USE THE GRAPHITE SERVICE OR PRIOR VERSIONS OF THE MOBILE APP. YOU ACKNOWLEDGE THAT THESE UPDATES WILL REQUIRE AN INTERNET CONNECTION AND YOU MAY INCUR ADDITIONAL DATA CHARGES FROM THE PROVIDER OF THE INTERNECT CONNECTION. YOU UNDERSTAND THAT THESE UPDATES ARE NECESSARY TO MAINTAIN COMPATIBILITY WITH OTHER UPDATES TO GRAPHITE’S PRODUCTS OR SERVICES AND MAY BE REQUIRED FOR SECURITY REASONS.

Privacy Policy and Use of Data

Graphite’s privacy policy, available at www.graphitecomics.com/privacy (“Privacy Policy”), explains Graphite’s policies regarding the collection, use, transmission and disclosure of information provided by or collected from you via the Mobile App. By agreeing to be bound by these Terms of Use, you are agreeing that you have read and understood the collection, use, transmission, and disclosure of your information or data as described in the Privacy Policy (and as amended from time to time). You should review the Privacy Policy before installing the Mobile App on your device. The policies and other content of the Graphite web pages may be changed by Graphite in its sole discretion, without notice to you.

Establishing a Graphite Subscription Account (Optional)

You will need to supply certain information, including, but not limited to, your credit card number or other payment account number, and your billing address (“Personal Financial Information“). You must be (a) at least eighteen (18) years of age, or the age of majority in your country; and (b) have the legal right to use the payment methods selected by you for use with your Graphite Account. We may use and disclose any Personal Financial Information you disclose, including, but not limited to, providing such information to third parties for the purposes of order fulfillment and payment processing. For more information about how Graphite uses your information, please review our Privacy Policy. You also understand and acknowledge that Graphite may use a third-party payment processor to process credit card payments on its behalf, and when you supply Personal Financial Information in connection with a purchase, you agree that Graphite is not responsible for the security of such information when it is in the control of the third-party payment processor.

You agree that all Personal Financial Information or other information you provide to us will be (i) accurate, current, and complete; (ii) promptly updated when there is a change; and (iii) your own information and not that of another individual. If you provide any information that is untrue, inaccurate or incomplete, or we have reasons to suspect that such information is untrue, inaccurate or incomplete, we retain the right to suspend or terminate any Graphite Account you establish and/or to refuse any or all current or future use of the Graphite Account or any devices linked thereto.

Do not reveal your Graphite Account information to anyone, including your Personal Financial Information. You acknowledge and agree that you are solely responsible for maintaining the confidentiality of your Graphite Account, login ID and password, and for all activities that occur on or through your Graphite Account. You agree to immediately notify Graphite of any unauthorized use of your Graphite Account, or any other security breach involving your Graphite Account. You agree that Graphite will not be responsible for any losses arising out of any unauthorized use of your Graphite Account.

Fees and Charges

All fees required to provide access to content or subscriptions will be charged to your payment method on file. You may be required to maintain a valid and active account in good standing to receive your subscription services. You must adhere to these Terms of Use.

Your purchases may be subject to sales tax. The amount of tax charged on your purchase will depend upon many factors, including the item purchased and the applicable tax rate in effect at the time of your purchase.

Subscription Renewals and Cancellations. All subscriptions will automatically renew until cancelled by you. If a subscription is cancelled mid-way through a subscription period, the subscription will end at the end of the subscription period. You will continue to receive the subscription services until the end of the subscription period, and fees for the remainder of the subscription period will not be refunded.

You agree to pay all charges that may be incurred by you or on your behalf through the Graphite Account, at the price(s) in effect when such charges are incurred. In addition, you remain responsible for any taxes that may be applicable to your transactions.

Advertising and Promotional Messages

Graphite and content providers may deliver and display advertising and promotional messages to you via the Mobile App, and to include such advertising and promotional messages in or with any user interface, notice, or content that is displayed on your device. Any interaction, transaction or agreement you have with third parties as a result of the advertising and promotional messages displayed to you are entirely between you and such third parties. Graphite is not responsible or liable for any claims, damages, losses or injuries arising from your interactions with such third parties.

WARRANTY DISCLAIMER; LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

(A) THE MOBILE APP IS PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. GRAPHITE DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GRAPHITE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE MOBILE APP WILL BE: (I) SECURE, VIRUS-FREE OR ERROR-FREE, OR (II) FREE FROM ATTACK OR SECURITY INTRUSION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING LIMITATIONS OF WARRANTIES MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

(B) IN NO EVENT SHALL GRAPHITE, ITS DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE TO YOU FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE MOBILE APP OR YOUR USE THEREOF; AND

(C) YOU AGREE THAT THE TOTAL CUMULATIVE LIABILITY OF GRAPHITE, ITS DIRECTORS, OFFICERS AND EMPLOYEES UNDER THESE TERMS OF USE, INCLUDING LIABIILTY RELATING TO THE MOBILE APP AND YOUR USE THEREOF, SHALL NOT EXCEED $10. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDY PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE AND EVEN IF GRAPHITE, ITS DIRECTORS, OFFICERS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.

SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF CERTAIN WARRANTIES OR LIMITATOINS OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

Choice of Law; Dispute Resolution

You agree to the binding arbitration and class action waiver provided below. You also agree that these Terms of Use shall be governed by the laws of the State of California, as if entered into by residents of California, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.

Miscellaneous

Graphite may transfer its rights and obligations under these Terms of Use to another organization. You may only transfer your rights or your obligations under these Terms of Use to another person if Graphite agrees in writing. These Terms of Use are between you and Graphite. No other person shall have any rights to enforce these terms. Each of the paragraphs of these Terms of Use operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect. If Graphite fails to insist that you perform any of your obligations under these Terms of Use, or if Graphite does not enforce its rights against you, or if Graphite delays in doing so, that will not mean that Graphite has waived its rights against you, or that you do not have to comply with those obligations. If Graphite does waive a default by you, Graphite will only do so in writing, but that will not mean that Graphite will automatically waive any later default by you.

Binding arbitration agreement

BINDING ARBITRATION AGREEMENT

  1. You and Graphite agree to be bound by the procedures set forth below to resolve any and all claims arising out of or relating to your use of the Graphite Mobile App or related Graphite service, including the Graphite website, and any aspect of this binding arbitration agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. Each such claim is referred to individually as “Claim” and collectively as “Claims”; and
  2. You and Graphite agree that, except for the claims identified in paragraph 4, any and all Claims shall be finally settled by binding arbitration. The arbitration shall take place in Santa Clara County, California and shall be administered by the American Arbitration Association (“AAA”) pursuant to the AAA’s then-current rules, including (if applicable) the AAA’s Supplementary Procedures for Consumer-Related Disputes. Please be aware there is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than the rules applicable in court, and review of the arbitrator’s decision by a court is limited. You and Graphite further agree that each of you may bring Claims against the other on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. The arbitrator may not consolidate or join more than one person’s claim and may not preside over any consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive or declaratory relief) only on an individual basis and may not award any form of consolidated, representative or class-wide relief. Notwithstanding any provision in these terms to the contrary, if the class-action waiver in this provision is deemed invalid or unenforceable, or if an arbitration is allowed to proceed on a class basis, then neither you nor Graphite are entitled to arbitrate the Claims. This arbitration provision is subject to the Federal Arbitration Act. The arbitrator’s award shall be binding on you and Graphite and may be entered in any court of competent jurisdiction.
  3. Information on AAA and how arbitration is initiated can be found at www.adr.org. Each party shall bear its own costs and expenses and arbitrator and administration fees shall be spilt equally, however the prevailing party shall be entitled to attorneys’ fees.
  4. This agreement to arbitrate does not apply to any Claim (a) in which a party is attempting to protect its intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights), or (b) that may be brought in small-claims court.
  5. If the agreement to arbitrate in this provision is found to be invalid, unenforceable or inapplicable to a given Claim, then any and all proceedings to resolve such Claim must be brought exclusively in a federal court of competent jurisdiction in the Northern District of California or in a state court in Santa Clara County, California. You hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
  6. 30-Day Right to Opt Out:  You have the right to opt out of this agreement to arbitrate by sending a written notice of your decision to opt out to the following address:  Legal, Graphite, LLC., 1434 6th Street Suite 8, Santa Monica CA 90401, USA; provided that, (a) with respect to Claims related to Graphite’s websites, such notice must be postmarked on or before the 30th day after the date you first visited Graphite’s websites, and (b) with respect to Claims related to the Graphite Mobile App, such notice must be postmarked on or before the 30th day after the date you downloaded such app. Your notice should include your full name, your current postal address, telephone number and email address. If you timely send a notice in compliance with this paragraph 6, the agreement to arbitrate will not apply to either you or Graphite. If you do not timely send this notice, then you agree to be bound by this agreement to arbitrate.
  7. Notwithstanding any provision in this binding arbitration agreement to the contrary, you agree that, if Graphite seeks to delete or materially modify the agreement to arbitrate described herein, any such deletion or modification will not apply to any individual Claim of which you have notified Graphite prior to such modification.

Contact Information

If you wish to contact Graphite, please send your correspondence by mail to Graphite Comics Inc., 1434 6th Street Suite 6, Santa Monica CA90401, USA, or by email to info@graphitecomics.com

 

Last Updated: October 22, 2018