Graphite Terms of Use

Last Updated: August 30, 2022

KEY TERMS

All work performed between Clients and Experts introduced through Graphite is subject to a service fee that shall be deducted from any payments made from Clients to Graphite before remitting payment to Experts.
Clients shall commit to making any and all payments for any work performed by any Expert introduced to them via Graphite (regardless of whether the work performed was what was originally posted on Graphite), exclusively through Graphite for the twenty-four (24) month period following the date of introduction to the Expert.
Experts shall commit to receiving any and all payments for work performed for any Client introduced to them via Graphite (regardless of whether the work performed was what was originally posted on Graphite), exclusively through Graphite for the twenty-four (24) month period following the date of introduction to the Client.
Clients and Experts may agree to work together independent of Graphite, subject to the Buy-out fee explained in Section 6 below.
Clients may hire Experts for full-time employment positions, in which case the Client shall pay Graphite a Full-Time Placement Fee as follows:

The greater of (1) 30% of the Expert's first-year salary, as outlined in a signed offer letter between Client and Expert and (2) $25,000, due within 10 days of the new hire's start date. For the avoidance of doubt, in no event shall the Full-Time Placement Fee be less than $25,000. Client is required to deliver a copy of such signed offer letter to Graphite within seven (7) business days of new hire’s start date.

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For new hires that never previously worked on a Graphite project with the Client, if the new hire is not employed for at least 90 days, Graphite will find a replacement candidate for the Client at no additional cost. If no suitable replacement candidate is found within 90 days of the new hire's last date of employment with the Client, Graphite shall refund the Full-Time Placement Fee to the Client.

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For new hires that began as an Expert working on a Graphite project for the Client, there will be no refund of the Full-Time Placement Fee.

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OVERVIEW

These Terms of Use ("Terms") govern your access to and use of our website located at www.graphite.com, and the associated services, applications, mobile services, buttons, and widgets (the "Services”), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as "Content"). Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.

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You may use the Services only if you can form a binding contract with Graphite and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.

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The Services that Graphite provides are always evolving and the form and nature of the Services that Graphite provides may change from time to time without prior notice to you. In addition, Graphite may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.

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1. DESCRIPTION OF THE SERVICES

The Services provide a means for independent consultants & consulting firms (“Expert(s)”) and clients seeking consulting services (“Client(s)”) to locate each other, negotiate job terms, engage in the hiring process, track work time, generate invoices, complete work, and process payments. Experts and Clients must apply to and be accepted by Graphite to use the Services. Once admitted to use the Services, Experts can apply to projects posted by Clients through the Services (“Project”).

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Clients select an Expert from the pool of Experts who apply to a Client’s Project, and hire the Expert through the Services (“Hired Expert(s)”). Once a Client hires an Expert through the Services, the parties may use the Services to manage the Project’s workflow. Experts must track their time and submit invoices for work performed via the Services. Clients must remit payment to Hired Experts through the Services.

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2. LICENSE TO USE THE SERVICES

Graphite gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that we provide to you as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Graphite in the manner permitted by these Terms.

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3. PRIVACY

Any information that you provide to Graphite is subject to our Privacy Policy, which governs our collection and use of your information. You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Graphite. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Graphite account, which you may not be able to opt-out from receiving.

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As outlined in our Privacy Policy, we may use your company logo on our website and in our marketing materials to promote the Services.

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4. ACCOUNTS

Application Data. In consideration of your use of the Services, you agree to: (i) provide true and accurate information about yourself as prompted by the Service's application form ("Application Data") and (ii) maintain and promptly update the Application Data to keep it current and complete. If you provide any information that is untrue or inaccurate or Graphite has a reasonable ground to suspect that such information is untrue or inaccurate, Graphite has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
Passwords. You are responsible for safeguarding the password that you use to access the Services and for any activities or actions under your password. Graphite cannot and will not be liable for any loss or damage arising from your failure to comply with the above.

5. USER CONTENT

All Content, whether publicly posted or privately transmitted, is the sole responsibility of the originator of such Content. Graphite may not monitor or control the Content posted via the Services and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.
Graphite does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Graphite be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.

6. FEES

Experts. As consideration for providing the Services, a service fee will be deducted from any payments made to an Expert prior to depositing the remainder in the Expert’s bank account (“Service Fee”). Upon being introduced to a Client through the Services (“Hiring Client(s)”), Experts shall commit to accepting any and all payments received for work performed for the Hiring Client exclusively through the Services for the twenty-four (24) month period following the date the Hired Expert is first introduced to the Hiring Client through the Services (the “Exclusivity Period”). For the avoidance of doubt, the Exclusivity Period applies to any and all work performed for such Hiring Client, regardless of whether the work is posted on the Services.
Clients. As consideration for the use of the Services, during a Hired Expert’s Exclusivity Period, the Hiring Client agrees to remit all payments due to the Hired Expert through the Services. During the Exclusivity Period, all work performed by Hired Expert for Client (regardless of whether the work is posted on the Services) must be paid for through the Services.
Should a Client use the Services to locate Experts on behalf of Client's customer or some other party ("End Customer"), Client shall be responsible for all Graphite fees associated with such Hired Expert, regardless of whether Client has received payment from End Customer. If Client's intent is for End Customer to pay the Graphite Service Fees, Full-Time Placement Fees or Buyout Fees, Client shall notify Graphite of such intent immediately upon posting a role to the Graphite site. Furthermore, Client shall direct its End Customer to create its own Graphite account in order for the End Customer to be bound by these Terms of Use. Client shall indemnify Graphite against any non-payment by its End Customer.
Any action that encourages or solicits complete or partial payment outside of the Services during the Exclusivity Period is a violation of these Terms. Should a Client or Expert be found in violation of this, he, she, or it will owe Graphite an amount with respect to each violation equal to the greater of (i) thirty thousand dollars ($30,000.00); or (ii) the applicable fees had the payments been processed through the Services, plus twenty percent (20%).
Buyout. Notwithstanding the provisions set forth above, Clients and Experts may agree to work together on a full-time basis independent of the Services, pursuant to the following provisions (the following buyout provisions apply only to an Expert hired by a Client after working on a Graphite project):
Buy-Out Fee. The Client shall pay the greater of (A) thirty percent (30%) of the Expert’s first-year annual compensation as stated in the agreement entered into between the Expert and the Client (“Off-Service Work Agreement”) for a twelve (12) month period beginning on the effective date of said Off-Service Work Agreement or (B) twenty-five thousand dollars ($25,000.00) (each, a “Buy-Out Fee”).
Buy-Out Notice. The Client shall notify Graphite in writing of its intent to pay the Buy-Out Fee and provide Graphite with a copy of the Off-Service Work Agreement within seven (7) days of entering into said agreement.
Non-Refundable. The Buy-Out Fee is non-refundable, regardless of the length of time that the Client works with the Expert.
Full-Time Placement. The Client may utilize the Services to identify candidates for full-time employment positions instead of consulting on a project.
Full-Time Placement Fee. In the event the Client hires any Expert for a full-time employment position, the Client shall pay a fee to Graphite (the "Full-Time Placement Fee") equal to thirty percent (30%) of the Expert’s first-year annual compensation, as stated in the employment agreement entered into between the Expert and the Client for a twelve (12) month period beginning on the effective date of said agreement, or $25,000, whichever amount is larger, provided (a) the Expert was presented to the Client via the Services and b) that the Client successfully hires for such position within twenty-four (24) months of first being presented with the Expert via the Services. In no event shall the Full-Time Placement Fee be less than $25,000.
Guarantee Period. The guarantee period shall be ninety (90) days from the Expert's first day of full-time employment. If the Expert is terminated or resigns within the first ninety (90) days (excluding company lay-off or downsizing), Graphite will find a replacement within ninety (90) days or refund fees paid in full. For the avoidance of doubt, the Guarantee Period shall NOT apply if Client exercises the Buy-Out Fee in connection with a part-time, interim, contract or other temporary position. The Guarantee Period shall only apply if the Client hires the Expert for a full-time, salaried employment position (as proven by a signed employment offer letter between Client and Expert).
Duplicate Candidates. If the Client views the same Expert from more than one (1) recruiter for the same or different position, and should the Expert be hired by the Client, the Client will pay any applicable fees described herein to Graphite provided the Client was first introduced to the candidate via the Services.
If the services provided by an Expert are rendered to a Client more than two (2) years after the later of i) the date when the Client first identified the Expert through the Services or ii) the date the Hiring Client last paid the Hired Expert through the Services, This Section 7 shall not apply.

7. PAYMENTS

Payment Process. The Graphite platform will automatically invoice Hiring Clients at predetermined regular intervals on Hourly, Daily, and Weekly rate projects for time worked by the Hired Expert. The automated invoicing interval may be weekly, bi-weekly, or monthly, and will be agreed upon by Graphite and the Hiring Client prior to an engagement commencing. For Fixed rate projects, invoices will be manually submitted to the Hiring Client via the Graphite platform according to a schedule agreed upon between Graphite, the Hiring Client, and the Hired Expert.

The Hiring Client must then pay the agreed-upon amount within the payment terms agreed to between Graphite and the Hiring Client, or dispute the invoice electronically via the Graphite platform. If the Hiring Client has taken no action after thirty (30) days, the payment is owed in full and Graphite will charge the credit card, bank account, or other payment method associated with the Hiring Client’s account for the full amount of the agreed-upon fee or undisputed final invoice, in addition to Graphite’s Service Fees. Once the 30 day period has passed, the charges are accepted by the Hiring Client and can no longer be disputed through the Services.
Authorization. By agreeing to these terms, Hiring Clients are giving Graphite permission to charge the credit card, bank account, or other approved method of payment associated with the Hiring Client’s account for fees associated with the Hiring Client’s use of the Services, including the full amount owed to any Hired Expert, as well as any Service Fee.
Responsibility For Payment. You are responsible for all fees, including taxes, associated with your use of the Services. By using the Services, you agree to pay the Hired Expert the amount agreed or reflected in an undisputed final invoice. Clients shall be responsible for providing Graphite with a valid means of payment.
Graphite’s Responsibility. Graphite agrees to present Hiring Clients with a full invoice of each charge in advance of charging your credit card or bank account. Graphite agrees to pay the applicable Hired Expert the amount received, less Graphite’s Service Fee.
Graphite’s Service Fee. The Service Fee shall be retained by Graphite prior to remitting payments to Hired Experts’ bank accounts.
Graphite’s Buy-Out Fee. A Client electing to pay a Buy-Out Fee for an Expert agrees to remit such payment to Graphite within fourteen (14) days of the notification described in Section 6.
Card Processing Fee. A Client making a credit card payment via the Graphite platform will be charged an additional 3% processing fee calculated on the gross payment amount. This processing fee will apply to all card payments made via Graphite, including those initiated automatically by the platform at the conclusion of the 30 day invoice window. No processing fee will apply to payments made by bank account (ACH) on the platform.
Client Failure to Pay. If a Client fails to pay amounts due under this Agreement, whether by canceling the credit card associated with a Client’s account, initiating an improper chargeback, or any other means, Client may have all projects suspended until Client has paid all past-due amounts. Without limiting other available remedies, Client must reimburse Graphite for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys' fees and other costs of collection as allowed by law. In its discretion, Graphite may set off amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
Graphite Instant Pay

a. Graphite offers Instant Pay to Expert on eligible clients and projects. Not all clients and projects are eligible for Instant Pay. Eligibility is determined by Graphite and Graphite reserves the right to change eligibility or deny Instant Pay requests

b. Instant Pay is offered as a service to Experts. Experts must opt-in to Instant Pay. Experts are not required to use this service and declining to use the Instant Pay will not impact the normal payment cycle outlined above.

c. Once requested by the Expert, Instant Pay requires the approval of the applicable invoice by the Client in the Graphite platform

i. Client approval of invoices is a binding agreement that the client agrees with the hours worked, description of services and dollar amount of the invoice and will pay the amount approved, regardless of any future issues between the Expert or Client. Once the invoice is approved, the Client promises to pay the amount approved, without exception.

ii. Clients are not required to approve Instant Pay if they dispute the invoice being requested for Instant Pay. Disputes should follow the process outlined above.

d. Once Instant Pay is approved, the Expert is paid out the amount of the invoice less a processing fee withheld by Graphite. Graphite reserves the right to change the fee at any time, but will alert the Expert to the fee being charged prior to activation of Instant Pay by the Expert. Graphite will not change the fee after Instant Pay has been requested on a specific invoice. Graphite reserves the right to change the fee on any future invoices or projects not already activated for Instant Pay.

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8. RIGHTS AND RESTRICTIONS

Our Rights. We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services, to suspend or terminate users, and to reclaim usernames without liability to you. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to:
satisfy any applicable law, regulation, legal process or governmental request,
enforce these Terms, including investigation of potential violations hereof,
detect, prevent, or otherwise address fraud, security or technical issues,
respond to user support requests, or
protect the rights, property or safety of Graphite, its users, and the public.
Restrictions. You may not do any of the following while accessing or using the Services:
access, tamper with, or use non-public areas of the Services, Graphite’s computer systems, or the technical delivery systems of Graphite’s providers;
access the Services through any technology or means other than those provided or authorized by the Services (and access to the Services through virtual private network or proxy is expressly forbidden);
probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Graphite (and only pursuant to these Terms), unless you have been specifically allowed to do so in a separate agreement with Graphite (NOTE: crawling and scraping the Services are expressly not permissible);
forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or
interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services.
You will not engage in any activity or transmit any material or information through the Services that (A) is unlawful or promotes unlawful activities; (B) defames, abuses, or harasses any individual or group; (C) is pornographic, discriminatory, or intimidating; (D) infringes on any proprietary rights of any party, including patents, trade secrets, copyrights, or any other rights; (E) impersonates any person or entity, including any Graphite employees or representatives; or (F) violates the privacy of any party.

9. INTELLECTUAL PROPERTY RIGHTS

Our Rights. All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Graphite and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the Graphite name or any of the Graphite trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding Graphite, or the Services is entirely voluntary, and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
Your Rights. You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
Copyrights. Graphite respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, Graphite will also terminate a user’s account if the user is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Services is:

Graphite Solutions, Inc.
ATTN: Copyright Agent
95 3rd St., 2nd Floor
San Francisco, CA 94103
copyright@graphite.com

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10. CONFIDENTIALITY ON THE SERVICES

Expert acknowledges that, in the course of performing work for a Client's Project through the Services, Expert may come into possession of business information or other confidential or proprietary information of Client (“Confidential Information”). Expert agrees that Confidential Information is the sole property of Client and further agrees to treat all such Confidential Information as confidential and will not disclose such information to third parties during and/or after the term of the Project except with Client's written approval, and only to the extent necessary to perform the Project through the Services. This prohibition also applies to Expert's employees, agents, and subcontractors. At the termination of the Project, Expert shall promptly return to Client, or certify destruction of, all copies of Confidential Information furnished by Client and all material prepared for or in connection with the Project in his/her possession. This obligation of confidentiality shall survive completion of the Project.

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11. DISPUTE RESOLUTION

While Graphite is not a party to the dealings between Experts and Clients, we benefit as a third-party from the covenants and agreements they make. As such, we offer assistance in resolving disputes related to such agreements. Dispute mediation through Graphite is informal and does not result in binding legal judgments. In the event either party refuses to comply with a Graphite dispute resolution recommendation, both parties are free to pursue any and all legal actions and remedies available.

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12. TERMINATION

You may end your legal agreement with Graphite at any time for any reason by sending an email request to team@graphite.com to deactivate your account. You do not need to specifically inform Graphite when you stop using the Services. If you stop using the Services without deactivating your accounts, your accounts may be deactivated due to prolonged inactivity.
We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms; (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. If we suspend or terminate your account, we will make reasonable efforts to notify you by email to the email address associated with your account or the next time you attempt to access your account.

Any provision or partial provision, such as the provisions regarding the payment of fees, which by its nature would reasonably survive the termination of these Terms shall survive termination.

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13. DISCLAIMERS AND LIMITATIONS OF LIABILITY

Please read this section carefully since it limits the liability of Graphite and its affiliates, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “Graphite Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.

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The Services are Available “As-Is”. Your access to and use of the Services or any Content are at your own risk. You understand and agree that the Services are provided to you on an "AS IS" and "AS AVAILABLE" basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, THE GRAPHITE ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
The Graphite Entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the Graphite Entities or through the Services, will create any warranty not expressly made herein.
Links. The Services may contain links to third-party websites or resources. You acknowledge and agree that the Graphite Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Graphite Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GRAPHITE ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE GRAPHITE ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID GRAPHITE, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.‍
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE GRAPHITE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Indemnity. You agree to defend, hold harmless and indemnify the Graphite Entities from and against any and all losses, costs, expenses, damages or other liabilities (including reasonable attorneys’ fees and costs) incurred by the Graphite Entities arising from or related to any cause of action, claim, suit, proceeding, demand or action brought by a third party against the Graphite Entities: (i) in connection with your use of the Services, including any payment obligations incurred through use of the Services; or (ii) resulting from: (A) your use of the Services; (B) your decision to hire a Candidate through the Services; (C) any breach of contract or other claims made by other users of the Services with whom you conducted business through the Services; (D) your breach of any provision of this Agreement; (E) any liability arising from the tax treatment of payments or any portion thereof; (F) your dispute of or failure to pay any invoice or make any other payment; or (G) your obligations to a Candidate, including payment obligations.

14. MISCELLANEOUS TERMS

Waiver and Severability. The failure of Graphite to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
Controlling Law and Jurisdiction. These Terms and any action related thereto will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the federal or state courts located in New York County, New York, United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
If you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Delaware (excluding choice of law).
Entire Agreement, Amendments, and Third-Party Beneficiaries. These Terms and our Privacy Policy are the entire and exclusive agreement between Graphite and you regarding the Services (excluding any services for which you have a separate agreement with Graphite that is explicitly in addition to or in place of these Terms), and these Terms supersede and replace any prior agreements between Graphite and you regarding the Services. This Agreement may not be modified or amended except by a written instrument executed by the parties hereto. No other person or company will be third party beneficiaries to the Terms.
Headings. The headings herein are for convenience only and are not part of this Agreement.
No Agency, Partnership, or Joint Venture. This Agreement and any registration for or use of the Site will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and Graphite, except and solely to the extent expressly stated in the Terms of Service.
Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including without limitation fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment, software or material required for such party to perform its obligations hereunder.
Insurance. Graphite Solution's E&O Policy will cover an independent contractor solely for acts or omissions within the course and scope of their contracted duties performed for the Insured Organization, and on behalf of and for clients of the Insured Organization.

15. CALIFORNIA RESIDENTS

Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:

Pricing Information. Current rates for our services may be obtained by sending an email to team@graphite.com. We reserve the right to change fees, surcharges, monthly or other periodic subscription fees or to institute new fees at any time as provided in this Agreement.
‍Complaints. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, CA 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

16. UPDATES TO OUR TERMS OF SERVICE

We may revise the Terms from time to time. The most current version of the Terms will govern your use of the Services and will always be at https://www.graphite.com/site/termsofuse. If we make a change to the Terms that, in our sole discretion, is material, we will notify you via a prominent notice on the Services or email to the email address associated with your account. By continuing to access or use the Services after those changes become effective, you agree to be bound by the revised Terms.

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The Services are operated and provided by Graphite Solutions, Inc., 95 3rd St., 2nd Floor, San Francisco, CA 94103. If you have any questions about the Terms, please contact us at team@graphite.com.

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For previous versions of these Terms, please contact us at team@graphite.com.