Subscription Agreement

By accepting this Subscription Agreement (this “Agreement”) or using the Service (as defined below), you agree to these Terms and Conditions. You represent that you have the authority to bind Client (as defined below) to this Agreement. If you do not have such authority, or if you do not agree with these Terms and Conditions, you must not accept this Agreement and may not use the Service. This Agreement is by and between Grammarly, Inc., a Delaware Corporation, with a mailing address at 548 Market Street, #35410, San Francisco, CA, 94104, USA (“Grammarly”), and Client. Grammarly and Client are sometimes referred to herein individually as a “Party,” and collectively as the “Parties.”

Recitals

WHEREAS, Grammarly has developed certain software applications, including the Service, as defined below, and offers the Service for reviewing text for grammar, style, plagiarism and other matters; and

WHEREAS, Client wishes to enter into a relationship with Grammarly in order to obtain access to the Service, and Grammarly wishes to provide the Service, all on the terms and conditions set forth herein and as specified in one or more Orders (as defined below).

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grammarly and Client hereby agree as follows:

  1. Definitions and Interpretation. In addition to the terms defined upon first use in this Agreement, the following capitalized terms used in this Agreement shall have the meanings specified below in this Section 1. The words “including,” “include” and “includes” shall each be deemed to be followed by the words “without limitation.” Any agreement, amendment, addendum, Order, annex, appendix, attachment or exhibit referred to herein shall mean such document as amended, restated, supplemented or modified from time to time in accordance with this Agreement. The headings, subheadings, and other captions in this Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement. In the event of any conflict, discrepancy or inconsistency between an Order and the terms of this Agreement, the terms of this Agreement shall govern, except as to scope of Service, Charges and payment terms, for which the Order shall govern.
    1. “Ancillary Software” means any interfaces or other Software made available by Grammarly (whether by way of download or otherwise) for client-side installation and use in connection with the Service.
    2. “Affiliate” means, with respect to any Party, any other Person that directly or indirectly is controlled by or under common control with such Party. For purposes of this Agreement, a Party shall be deemed to have “control” over another Person only if: (a) such Person directly or indirectly, on its own or acting through one or more Persons, owns, controls or has power to vote at least fifty percent (50%) of the issued and outstanding voting stock or other equity interest of the other Person; or (b) such Person controls or has the power to control the management or operations of such other Person, including by contract.
    3. “Authorized User” means an employee, faculty member or student, as applicable, of Client who is authorized by Client to use the Service for the Permitted Purpose.
    4. “Charges” means the amounts payable by Client to Grammarly under this Agreement in respect of the Service, as set forth in the applicable Order(s).
    5. “Claim” means any claim, demand, action, suit or other judicial proceeding asserted or brought by a third party and any threat of any of the foregoing.
    6. “Client” means the entity that has ordered a subscription to the applicable Service pursuant to an Order.
    7. “Client Content” means all text, data and other content uploaded or entered by Client or any Authorized User in connection with use of the Service.
    8. “Confidential Information” means any information about a Party’s or its Affiliate’s business affairs, products or services, intellectual property, trade secrets, third-party confidential information and other sensitive and proprietary information, which is disclosed by the disclosing Party or its Affiliate’s in connection with this Agreement whether before, on or after the Effective Date, directly or indirectly, in writing (including via e-mail), orally or by inspection of software, to the receiving Party or any of its Affiliates, employees or designated agents. Confidential Information includes the existence and terms of this Agreement. Confidential Information does not include any of the following: (a) information that is or becomes part of the public domain or otherwise available on an unrestricted basis to one or more third parties without violation of this Agreement by the receiving Party; (b) information that was known to or in the possession of the receiving Party on a non-confidential basis prior to the disclosure thereof to the receiving Party by the disclosing Party, as evidenced by written records; (c) information that was developed independently by or on behalf of the receiving Party, without use of or reference to the Confidential Information; or (d) information that is disclosed to the receiving Party by a third party without violation of this Agreement by the receiving Party.
    9. “Documentation” means any instruction manuals and user guides for the Service and/or Software as made available by Grammarly from time to time (if any), whether published or distributed in print, online or other format.
    10. “Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information of a like kind; (e) waivable or assignable rights of publicity, waivable or assignable moral rights; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable law.
    11. “Grammarly IP” means the Software and all other software, documentation, data, content, technology and works created, utilized and/or provided by or on behalf of Grammarly in connection with the performance of the Service or otherwise in connection with this Agreement.
    12. “Order” means an ordering document (including any online form) accepted by Client that (a) incorporates by reference the terms and conditions of this Agreement, and (b) describes the Service to be provided, including any additional requirements, specifications or other terms applicable thereto.
    13. “Permitted Purpose” means the use of the Service for Client’s internal business purposes to review and process Client Content, in accordance with this Agreement, the Order(s) and the applicable Documentation.
    14. “Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, university, joint venture or other form of business or legal entity.
    15. “Service” means the online text review services provided from time to time by Grammarly hereunder via www.grammarly.com and/or other Grammarly designated websites, and related offline services and components, including offline proofreading services.
    16. “Software” means any software (including both source code and object code, as applicable, and including any associated Documentation) developed, provided or used by Grammarly or its agents in connection with this Agreement.
  2. Provision of the Service. During the term of this Agreement, Grammarly will provide the Service to Client on the terms and conditions set forth in this Agreement, including the applicable Order(s).
  3. Use of the Service.
    1. Usage Rights. Subject to the terms and conditions of this Agreement, Grammarly hereby grants to Client a limited, non-exclusive, non-sublicensable and non-transferable (except as provided in Section 13) right and license during the term of this Agreement to access and use, and permit Authorized Users to access and use, the Service solely for the Permitted Purpose. Client shall not exceed the maximum number of seats listed for Authorized Users on the applicable Order (each of which seat represents a unique (named) user). Authorized User seats are not transferrable by assignment, license, lease, operation of law or otherwise.
    2. Ancillary Software. To the extent Grammarly provides or otherwise makes available to Client any Ancillary Software, the rights and licenses granted pursuant to Section 3.1 shall include (a) the right to install and execute such Ancillary Software on computers owned, leased or otherwise controlled by Client and (b) to permit Authorized Users to access and use such Ancillary Software installation, in each of cases (a) and (b) solely in conjunction with the authorized use of the Service in accordance with the terms and conditions of this Agreement. Upon expiration or termination of this Agreement for any reason, Client shall cease any further use of the Ancillary Software and Client shall promptly destroy or cause to be destroyed all copies thereof in the possession or under the control of Client and, if requested by Grammarly, Client shall furnish Grammarly with a written certificate confirming such destruction.
    3. Restrictions. Except for the rights granted in Section 3.1, no other rights in or to the Service or Grammarly IP, express or implied, are granted to Client. Except as may be specifically permitted under this Agreement, Client may not: (a) copy, modify or create derivative works based on any Grammarly IP; (b) distribute, transmit, publish or otherwise disseminate any Grammarly IP; (c) transfer to any other Person any of its rights to use the Service or any Software; (d) access or use the Service or Software for the benefit of any third party; (e) permit any Person who is not an Authorized User to use or access the Service or Software (f) use the Service or Software other than for the Permitted Purpose; (g) access content or data not intended for Client, log onto a server or account that Client is not authorized to access, or otherwise violate or attempt to violate any security feature of the Service or Software; (h) attempt to access or derive the source code or architecture of any Software; (i) attempt to probe, scan, or test the vulnerability of the Service and/or Software, or any associated system or network, or to breach security or authentication measures; (j) interfere or attempt to interfere with service to any user, host, or network, including by means of submitting a virus to the Service, load testing, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (k) automate access to the Service, including through the use of bots, scrapers or other similar devices; (l) export or re-export any Grammarly IP; (m) alter, remove or conceal any government restricted rights notice or any copyright, trademark, trade name or other proprietary marking or notice that may appear in any of the Documentation or other Grammarly IP; (m) use the Service in a manner that violates any applicable law, ordinance, regulation or administrative order or the rights of any Person; (n) use or access any Service, Software or any other Grammarly IP in order to build a competitive solution; or (o) permit any Person to do any of the foregoing.
    4. Specific Terms. Certain Software (including Ancillary Software) or features of the Service may be subject to additional limitations, restrictions, terms and/or conditions specific to such Software or Service (“Specific Terms”). In such cases, the applicable Specific Terms will be made available to Client and Client’s access to and use of the relevant Service or Software will be contingent upon Client’s acceptance of and compliance with such Specific Terms.
    5. Security. Client shall take reasonable steps to ensure that all user IDs, passwords and other security devices used in connection with the Services and in its possession are kept confidential and secure, are used properly and are not disclosed to unauthorized Persons. Client shall immediately inform Grammarly if there is any reason to believe that a user ID, password, or any other security device issued by Grammarly has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. Grammarly reserves the right (at its sole discretion) to request Client to change any or all of the passwords used by Client and/or any of Client’s Authorized Users in connection with the Service, and Client shall promptly comply with any such request.
    6. Client Content. Client is solely responsible for all Client Content. Grammarly has no obligation to monitor any Client Content and shall have no liability to you or any other Person with respect thereto. GRAMMARLY IS NOT RESPONSIBLE OR LIABLE FOR THE LOSS, CORRUPTION OR OTHER CHANGES TO CLIENT CONTENT. Without limiting the foregoing, any feature(s) of the Service and/or Software that may permit the temporary saving or other storage of any Client Content is offered for Client’s convenience only and does not guarantee that the Client Content will be retrievable. Client and its Authorized Users are solely responsible for saving, storing and otherwise maintaining Client Content including by maintaining backup copies of the Client Content on appropriate independent systems that do not rely on the Service and/or Software.
  4. Charges and Payment. Charges for the Service shall be calculated and paid in accordance with this Agreement and the applicable Order(s). Unless otherwise specified in this Agreement and the Orders: (i) Grammarly shall invoice Charges for use of the Service annually in advance; (ii) Grammarly reserves the right to increase any Charges at any time; and (iii) if this Agreement is automatically renewed, the Charges per Authorized User for each Renewal Period will automatically increase nine percent (9%) over the Charges per Authorized User in the immediately prior Initial Period or Renewal Period, as applicable. Client shall pay all invoiced Charges within 30 days of the date of Grammarly’s invoice. The Charges do not include any taxes, and Client shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by Grammarly) due as a result of any amounts paid to Grammarly. Grammarly may charge Client interest at the rate of 1.5% per month (or the highest rate allowable by law, if less) for any past due Charges, from the date payment was due until the date paid. Client shall bear any costs (including attorneys’ fees and costs) incurred by Grammarly in collecting any amounts due hereunder.
  5. Representations and Warranties.
    1. Each Party represents and warrants to the other Party that it has taken all action necessary for the lawful acceptance, delivery and performance of this Agreement; the person accepting and agreeing to this Agreement on its behalf has been duly authorized to do so by all requisite corporate and other action; and this Agreement is legally binding upon it and enforceable in accordance with its terms.
    2. Grammarly represents and warrants to Client that it will provide the Service using reasonable skill and care. In the event of any nonconformance with the warranty specified in this Section 5.2, Grammarly will, following receipt of written notice from Client specifying such non-conformance, use commercially reasonable efforts to make available to Client a conforming version of the Service, and if Grammarly fails to do so within 30 days, Client shall have the right to terminate this Agreement upon written notice. The foregoing sets forth the exclusive remedies of Client, and the sole liability of Grammarly, in the event of any nonconformance with the warranty set forth in this Section 5.2.
    3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, GRAMMARLY IS PROVIDING THE SERVICE AND SOFTWARE “AS IS” AND GRAMMARLY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND/OR SOFTWARE OR ITS PERFORMANCE HEREUNDER, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, GRAMMARLY DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE AND/OR SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.
  6. Indemnification.
    1. Client shall indemnify, defend and hold harmless Grammarly and its Affiliates and their respective employees and agents from and against any loss, cost, damage or expense (including reasonable attorneys’ fees) (collectively, “Damages”) in respect of any Claim arising from (a) any breach of this Agreement by Client or (b) Client’s or any Authorized User’s use of the Service, except to the extent the Claim concerned is subject to Grammarly’s indemnity obligations under Section 6.2.
    2. Grammarly shall indemnify, defend and hold harmless Client and its Affiliates and their respective employees from and against any Damages in respect of any Claim alleging that the Software or Service as provided by Grammarly hereunder infringe any third party copyright, trademark or United States patent, except to the extent the Claim concerned is subject to Client’s indemnity obligations under Section 6.1 or relates to any Client Content or any other materials provided by or on behalf of Client. In the event of any such Claim of infringement, Grammarly may at its option and sole expense make any modifications to the Software or Service at issue that are recommended by Grammarly’s counsel to avoid infringement of third party rights, provided that if any such modification materially impacts the value of the Service as a whole to Client, Client may terminate this Agreement by written notice to Grammarly without further liability. This Section 6.2 states Client’s sole remedy and Grammarly’s entire liability for any loss and damages whatsoever arising out of or relating to any actual or alleged infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third party.
    3. As a condition to the obligations of the indemnifying Party under either of Sections 6.1 or 6.2 above, the indemnified Party shall (a) promptly notify the indemnifying Party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the indemnifying Party of any liability or obligations hereunder except to the extent the indemnifying Party has been prejudiced by such delay, (b) permit the indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing, and (c) provide cooperation reasonably requested by the indemnifying Party in investigating and defending such Claim, at the indemnifying Party’s expense. The indemnified Party shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing. The indemnifying Party shall not settle or otherwise compromise any such Claim without the indemnified Party’s prior written consent, which shall not be unreasonably withheld.
  7. LIMITATIONS OF LIABILITY.
    1. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 9 (CONFIDENTIALITY) OR SECTION 10 (PROPRIETARY RIGHTS), IN NO EVENT WILL EITHER PARTY HEREUNDER BE LIABLE TO THE OTHER FOR ANY LOSS OF BUSINESS, OR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
    2. EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL CHARGES ACTUALLY PAID BY CLIENT TO GRAMMARLY HEREUNDER DURING THE PRECEDING TWELVE MONTHS; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY WITH RESPECT TO (A) ANY LIABILITY FOR PERSONAL INJURY OR DEATH PROVEN TO HAVE RESULTED FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) LIABILITY ARISING FROM A BREACH OF SECTION 9 (CONFIDENTIALITY) OR SECTION 10 (PROPRIETARY RIGHTS), OR (C) CHARGES DUE TO GRAMMARLY HEREUNDER.
  8. Term and Termination.
    1. The term of this Agreement shall commence on the Effective Date and shall initially continue for a period of twelve (12) months (the “Initial Period”). Thereafter, this Agreement shall automatically renew for successive twelve (12) month periods (each, a “Renewal Period”) unless either Party provides notice of non-renewal to the other Party no later than sixty (60) days prior to the end of the Initial Period or the then-current Renewal Period, as applicable.
    2. Either Party may terminate this Agreement by notice if the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting Party. In addition, Grammarly may suspend the Service upon notice if Client fails to make any payment required under this Agreement and fails to cure such breach within ten (10) days after receipt of notice of the breach from Grammarly. Any such suspension or termination shall be without limitation of any other right or remedy available to the terminating Party.
    3. Grammarly may terminate this Agreement for convenience upon sixty (60) days’ prior written notice without liability to Client. Following a termination pursuant to this Section, Grammarly shall refund the pro rata portion of any Charges relating to the remaining Initial Period or Renewal Period, as applicable.
    4. If this Agreement is terminated or otherwise expires for any reason: (a) Client shall promptly return to Grammarly or destroy, as directed by Grammarly, all Confidential Information, Software and other materials in Client’s possession or under its control belonging to Grammarly, and all rights and licenses granted by Grammarly pursuant to this Agreement shall terminate. (b) Client shall pay all Charges that have accrued and are owed hereunder within thirty (30) days following any termination or expiration of this Agreement. (c) Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration, including Sections 1, 3.2, 3.3, 4, 6, 7, 8.4, 9, 10, 12 and 13.
  9. Confidentiality. Each Party that receives Confidential Information of the other Party agrees that, unless the disclosing Party gives its prior written authorization, it shall not: (a) use such Confidential Information other than for the purposes of this Agreement; or (b) disclose any such Confidential Information to any third party except those directors, officers and employees of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving Party shall prevent the unauthorized use, disclosure, dissemination or publication of such Confidential Information with at least the same degree of care that the receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Any breach of the confidentiality obligations set forth in this Section 9 would constitute a material breach of this Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach. This Section 9 will remain in effect during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement for any reason. In the event that the provisions of this Section 9 are inconsistent with the provisions of any applicable non-disclosure (or comparable) agreement separately executed by the Parties, then the terms of that non-disclosure (or comparable) agreement shall govern.
  10. Proprietary Rights.
    1. All Intellectual Property Rights in and to the Client Content are and shall remain the sole property of Client and its Affiliates and licensors, as applicable, and Grammarly shall acquire no right of ownership or use with respect to any Client Content except in connection with its provision of the Service under this Agreement. All Intellectual Property Rights in and to the Grammarly IP are and shall remain the sole property of Grammarly and its Affiliates and licensors, as applicable, and Client shall acquire no right of ownership or use with respect to any Grammarly IP except as specified in Section 3. Without limiting the foregoing, Client acknowledges that the Software and the Service and the inventions, know-how and methodology embodied therein are proprietary to, and contain valuable trade secrets of, Grammarly and its Affiliates and licensors, as applicable, and that the Software constitutes Confidential Information of Grammarly.
    2. Client may from time to time provide Grammarly with suggestions, recommendations and/or feedback regarding the Service, the Software and/or Grammarly’s related technologies (“Feedback”). As between the parties, all Feedback is exclusively owned by Grammarly and Grammarly shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to Client or to any other Persons.
  11. Platform-Based Service. Client acknowledges that the Service is based on a system platform made available by Grammarly to a variety of its clients. Grammarly reserves the right to implement upgrades, updates and modifications to such system platform at any time and from time to time.
  12. Publicity. Client hereby grants Grammarly the right to reproduce and display the Client’s name, logo and trademarks on Grammarly’s website and in brochures and other marketing materials for the purpose of identifying Grammarly’s relationship with Client.
  13. General Provisions. This Agreement, together with the Order(s) and any Special Terms, constitute the entire agreement between Parties with regard to their subject matter and supersede any and all previous communications, whether oral or written, with respect to such subject matter hereof. No waiver or modification of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each Party. Any forbearance or delay on the part of either Party in enforcing any of its rights under this Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect, and the invalid, illegal or unenforceable provision shall be modified so as to be enforceable to the maximum extent permitted by applicable law, consistent with the intent of the Parties. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to its choice of law principles. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in San Francisco County, California. Each Party agrees to submit to the exclusive jurisdiction of, and agrees that venue is proper in, these courts in any such legal action or proceeding. The foregoing shall not prevent either Party from seeking injunctive relief from any court of competent jurisdiction. Client may not assign or otherwise transfer this Agreement, by operation of law or otherwise, without the prior written consent of Grammarly, except that Client may upon notice assign this Agreement without such consent to an Affiliate, provided no such assignment shall relieve Client of its obligations hereunder. A merger or transfer or assignment by operation of law shall be deemed to constitute a prohibited assignment hereunder. Subject to the foregoing, all provisions contained in this Agreement shall extend to and be binding upon the Parties and their respective permitted successors and permitted assigns. Any attempted assignment or delegation of any rights, duties, or obligations in violation of hereof shall be void ab initio. Grammarly may give notice applicable to Grammarly’s general Service customer base by means of a general notice on the Service portal, and notices specific to Client by electronic mail to Client’s e-mail address on record in Grammarly’s account information or by written communication sent by overnight courier or personal delivery to Client’s address on record in Grammarly’s account information. Client may give notices to Grammarly by overnight courier or personal delivery at Grammarly’s address set forth above, Attn: Legal Department.