CharmIQ Terms of Service Agreement
Last Updated Date: July 15th, 2024
This Terms of Service Agreement (this “Agreement”) provides the terms pursuant to which CharmIQ, Inc., a Delaware C Corporation with principal offices at 220 N. Green Street, Suite 2011, Chicago, IL 60607 (“CharmIQ”) provides access to its proprietary, generative AI platform (the “CharmIQ Offering”) to its customers (“Customer” or “you”).
PLEASE REVIEW THIS AGREEMENT CAREFULLY. TO ACCESS AND USE THE SERVICES AS A CUSTOMER, YOU MUST REVIEW AND ACCEPT THE TERMS OF THIS AGREEMENT. BY ACCESSING OR USING THE SERVICES IN ANY WAY, INCLUDING BY CHECKING THE “I ACCEPT” BOX, COMPLETING THE REGISTRATION PROCESS, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST 18 YEARS OF AGE AND LEGALLY ALLOWED TO FORM A BINDING CONTRACT WITH CHARMIQ, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT ENTITY TO THE THIS AGREEMENT, AND IN WHICH CASE, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY, AND ALL REFERENCES TO “CUSTOMER” WILL ALSO BE DEEMED TO REFER TO YOU.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT CHARMIQ’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU ACT IN ACCORDANCE WITH SECTION 6.5 (AUTOMATIC RENEWAL) BELOW.
DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 "CharmIQ Properties" means all digital properties owned or operated by CharmIQ, Inc., including but not limited to the corporate website, the CharmIQ platform, and the CharmIQ community portal.1.2 "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the CharmIQ Properties.
1.3 "Authorized User" means each of Customer or Customer’s employees (collectively “Customer”) who are authorized to access the CharmIQ Properties pursuant to Customer’s rights under this Agreement.
1.4 "Customer Prompts" means any prompts, or similar content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services, including any content or information provided by the Customer or its Authorized Users in connection with their prompts, or for training purposes.
1.5 "Documentation" means the technical materials provided by CharmIQ to Customer in hard copy or electronic form describing the use and operation of the CharmIQ Offering.
1.6 "Generative AI" means artificial intelligence technology and tools capable of producing various types of content, including source code, text, images, audio, and synthetic data, based on user-supplied prompts.
1.7 "Generated Content" means output generated and returned by the Services based on Customer Prompts.
1.8 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) design rights, and other proprietary rights of every kind and nature; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.9 "CharmIQ Offering" means the CharmIQ Generative AI service offering that allows Authorized Users to access certain features and functions, and generate certain content and products, through a web interface, including any updates and upgrades thereto which CharmIQ makes available to Customer. The CharmIQ Offering is a part of the CharmIQ Properties.
1.10 "Services" means the Generative AI services provided by CharmIQ to Customer under this Agreement through which CharmIQ provides the CharmIQ Offering.
1.11 "Content" means all images, video, audio, audio-visual, text, materials, and other content.
1.12 "Make Available" means to upload, post, e-mail, transmit or otherwise make accessible through CharmIQ Properties.
1.13 "User Content" means any Content that Authorized Users Make Available through CharmIQ Properties.
1.14 "Customer Content" means any Content that Customer Makes Available through CharmIQ Properties, including any Content that Customer creates or generates through the use of CharmIQ Properties, other than the CharmIQ Properties themselves.
PROVISION OF SERVICES.
2.1 Access: Subject to the terms and conditions of this Agreement, CharmIQ will provide Authorized Users with access to the CharmIQ Properties during the Term. On or as soon as reasonably practicable after the Effective Date, CharmIQ will provide Authorized Users the necessary Access Protocols to allow Authorized Users to access the CharmIQ Properties in accordance with the Access Protocols. Customer and its Authorized Users will use commercially reasonable efforts to prevent unauthorized access to, or use of, the CharmIQ Properties, and notify CharmIQ promptly of any such unauthorized use known to them.
2.2 Registration: To access the CharmIQ Properties, each Authorized User must register an account (“Account”). Customer will ensure that all Authorized Users (a) provide true, accurate, current, and complete information as prompted by the registration form, including but not limited to single sign-on workflows such as OAuth, (the “Registration Data”), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If any Registration Data is untrue, inaccurate, not current or incomplete, or CharmIQ has reasonable grounds to suspect that any Registration Data is untrue, inaccurate, not current or incomplete, CharmIQ has the right to suspend or terminate Customer’s or any of its Authorized Users’ Accounts and refuse any and all current or future use of the CharmIQ Properties (or any portion thereof).
2.3 Accounts. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Customer and its Authorized Users shall have no ownership or other property interest in its and their Accounts, and Customer further acknowledges and agrees that all rights in and to its and its Authorized Users’ Accounts are and shall forever be owned by and inure to the benefit of CharmIQ.
2.4 Necessary Equipment and Software. Customer must provide all equipment and software necessary to access the CharmIQ Properties. Customer is solely responsible for any fees, including Internet connection or mobile fees, that Customer (including its Authorized Users) incurs when accessing the CharmIQ Properties.
2.5 Updates. Customer acknowledges and agrees that the CharmIQ Properties are evolving. CharmIQ may update the CharmIQ Properties from time to time, with or without notifying Customer. Customer may need to update third-party software from time to time in order to continue using the CharmIQ Properties.
CHARMIQ OFFERING AND INTELLECTUAL PROPERTY.
3.1 License Grant. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, CharmIQ grants to Customer a non-exclusive, non-transferable (except as permitted under Section 12.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes, to access and use the CharmIQ Offering, in accordance with the Documentation. Customer may permit any Authorized Users to access and use the features and functions of the CharmIQ Offering as contemplated by this Agreement.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the CharmIQ Offering or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the CharmIQ Offering or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the CharmIQ Offering or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, design, algorithms, structure or organization) of the CharmIQ Offering, except as permitted by law; (e) interfere in any manner with the operation of the CharmIQ Offering or the hardware and network used to operate the CharmIQ Offering; (f) attempt to engage in or engage in, any potentially harmful acts that are directed against the CharmIQ Offering, including but not limited to violating or attempting to violate any security features of the CharmIQ Offering, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the CharmIQ Offering, introducing viruses, worms, or similar harmful code into the CharmIQ Offering, or interfering or attempting to interfere with use of the CharmIQ Offering by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the CharmIQ Offering; (g) modify, copy or make derivative works based on any part of the CharmIQ Offering or Documentation; (h) access or use the CharmIQ Offering to build a similar or competitive product or service; (i) attempt to access the CharmIQ Offering through any unapproved interface; or (j) otherwise use the CharmIQ Offering or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement.
3.3 Ownership by CharmIQ. The CharmIQ Offering and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of CharmIQ and its suppliers. All rights in and to the CharmIQ Offering and Documentation not expressly granted to Customer or Authorized Users in this Agreement are reserved by CharmIQ and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer or Authorized Users regarding the CharmIQ Offering, Documentation, or any part thereof.
3.4 Open Source Software. Certain items of software may be provided to Customer with the CharmIQ Offering and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 3.1 (License Grant) or Section 8 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, CharmIQ makes such Open Source Software, and CharmIQ’s modifications to that Open Source Software, available by written request at the notice address specified above.
3.5 Third Party Services. The Services may contain data, links or connections to or from third party websites, products or services that are not owned or controlled by CharmIQ, which may include, without limitation, Google, OpenAI, video segmentation models, and any third party services you select as data sources (“Third Party Services”). When Customer access or use Third Party Services, or data provided thereby, Customer accept that there are risks in doing so, and that CharmIQ is not responsible for such risks, or the reliability thereof. We also encourage you to read the terms and conditions and privacy policy of all Third Party Services service providers that you visit or utilize. CharmIQ has no control over, and assumes no responsibility for, the information, accuracy, privacy policies, services, or practices of or opinions expressed in any Third Party Services.
3.6 Feedback. Customer, on behalf of itself and its and Authorized Users, hereby grants to CharmIQ a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services, including any such feedback provided in response to Customer Prompts and Generated Content. CharmIQ will not identify Customer as the source of any such feedback.
CUSTOMER PROMPTS AND INTELLECTUAL PROPERTY.
4.1 Ownership by Customer; License.
4.1.1 Customer Content. Customer acknowledges that all images, video, audio, audio-visual, text, materials, and other content provided or generated by Customer or its Authorized Users through the use of the CharmIQ Properties (collectively, “Customer Content”), including but not limited to Customer Prompts and Generated Content, is the sole responsibility of the Customer. This means that Customer, and not CharmIQ, is entirely responsible for all Customer Content. Customer Content does not include the CharmIQ Properties themselves.
4.1.2 Ownership and License of Customer Content. The Customer Content, including Customer Prompts and Generated Content, and all worldwide Intellectual Property Rights in them, are the exclusive property of Customer. Customer is solely responsible for any and all obligations with respect to the accuracy, quality, and legality of Customer Content. Customer will obtain all third-party licenses, consents, and permissions needed for CharmIQ to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for CharmIQ to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants CharmIQ a non-exclusive, worldwide, royalty-free, and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services, including by sharing the Customer Content with Third Party Services, as applicable, and (b) to use the Customer Content in an aggregated and anonymized form to: (i) improve the Services and CharmIQ’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. All rights in and to the Customer Content not expressly granted to CharmIQ in this Agreement are reserved by Customer.
4.1.3 Generated Content. As between the parties and to the extent permitted by applicable law, Customer owns all Generated Content. Customer grants CharmIQ a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Generated Content as necessary for purposes of providing and improving the Services, including by sharing the Generated Content with Third Party Services, as applicable, and to comply with applicable law and enforce CharmIQ policies, and (b) use the Generated Content in an aggregated and anonymized form to: (i) improve the Services and CharmIQ’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent.
4.1.4 Disclaimer; Limitations. Due to the nature of machine learning, Generated Content may not be unique across users and the Services may generate the same or similar output for CharmIQ or a third party. Other CharmIQ customers may also provide similar customer prompts as inputs to the Services and receive generated content that is similar or identical to Generated Content. Customer has no right, title or interest in or to generated content provided to other parties, regardless of the level or degree of similarity. Generative artificial intelligence and machine learning are rapidly evolving fields of study. CharmIQ is constantly working to improve the Services. Given the probabilistic nature of machine learning, use of the Services may in some situations result in inaccurate or incomplete Generated Content. Customer is responsible for evaluating the accuracy and suitability of Generated Content as appropriate for Customer’s use case, and subjecting Generated Content to Customer’s standard quality control procedures within its business, including by using human review of Generated Content.
4.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any Intellectual Property Rights; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage CharmIQ’s system or data; or (e) otherwise violate the privacy or other rights of a third party. Customer agrees that any use of the CharmIQ Offering contrary to or in violation of the representations and warranties of Customer in this Section 4.2 (Customer Warranty) constitutes unauthorized and improper use of the CharmIQ Offering.
4.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the CharmIQ Offering. Customer is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
4.4 Storage. Unless expressly agreed to by CharmIQ in writing elsewhere, CharmIQ has no obligation to store any Customer Content that Customer makes available on CharmIQ Properties. CharmIQ has no responsibility or liability for the deletion or accuracy of any content, including Customer Prompts and Generated Content; the failure to store, transmit or receive transmission of content; or the security, privacy, storage, or transmission of other communications originating with or involving the use of CharmIQ Properties. Certain Services may enable Customer to specify the level at which such Services restrict access to Customer Content. Customer is solely responsible for applying the appropriate level of access to such content. If Customer does not choose, the system may default to its most permissive setting. Customer agrees that CharmIQ retains the right to create reasonable limits on CharmIQ’s use and storage of the Customer Content, including Customer Prompts and Generated Content, such as limits on file size, storage space, processing capacity, and similar limits described in the Documentation and as otherwise determined by CharmIQ in its sole discretion.
INTERACTIONS WITH OTHER USERS.
5.1 User Responsibility. Customer is solely responsible for its interactions with other Authorized Users and any other parties with whom Customer interacts; provided, however, that CharmIQ reserves the right, but has no obligation, to intercede in such disputes. Customer agrees that CharmIQ will not be responsible for any liability incurred as the result of such interactions.
5.2 Content Provided by Other Users. CharmIQ Properties may contain User Content provided by other Authorized Users. CharmIQ is not responsible for and does not control User Content. CharmIQ has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to, User Content. Customer uses all User Content and interacts with other Authorized Users at its own risk.
FEES AND PURCHASE TERMS.
6.1 Payment. Customer agrees to pay all fees or charges to its Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Customer must provide CharmIQ with a valid credit card (Visa, MasterCard, or any other issuer accepted by CharmIQ) through a payment provider (the “Payment Provider”), or purchase order information, as a condition to signing up for the Services. The agreement with the Payment Provider governs the use of the designated credit card or PayPal account, and Customer must refer to that agreement, not this Agreement, to determine its rights and liabilities. By providing CharmIQ with the credit card number or PayPal account and associated payment information, Customer agrees that CharmIQ is authorized to immediately invoice the Account for all fees and charges due and payable to CharmIQ hereunder and that no additional notice or consent is required. Customer agrees to immediately notify CharmIQ of any change in its billing address or the credit card or PayPal account used for payment hereunder. CharmIQ reserves the right at any time to change its prices and billing methods, either immediately upon posting on CharmIQ Properties or by e-mail delivery to Customer.
6.2 Service Subscription Fees. Customer will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time it creates its Account and selects its package (each, a “Service Commencement Date”). Except as set forth in this Agreement, all fees for the Services are non-refundable. No contract will exist between Customer and CharmIQ for the Services until CharmIQ accepts Customer’s order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
6.3 Taxes. The payments required under Section 6.2 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If CharmIQ determines it has a legal obligation to collect a Sales Tax from Customer in connection with this Agreement, CharmIQ shall collect such Sales Tax in addition to the payments required under Section 6.2 (Service Subscription Fees) of this Agreement. If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to CharmIQ, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and Customer will indemnify CharmIQ for any liability or expense CharmIQ may incur in connection with such Sales Taxes. Upon CharmIQ’s request, Customer will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6.4 Withholding Taxes. Customer agrees to make all payments of fees to CharmIQ free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to CharmIQ will be Customer’s sole responsibility, and Customer will provide CharmIQ with official receipts issued by the appropriate taxing authority, or such other evidence as CharmIQ may reasonably request, to establish that such taxes have been paid.
6.5 Automatic Renewal. Customer's subscription will continue indefinitely until terminated in accordance with the Agreement. After the initial subscription period, and again after any subsequent subscription period, the subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at CharmIQ’s then-current price for such subscription. Customer's Account will be subject to this automatic renewal feature unless Customer cancels the subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that Customer receives a notice from CharmIQ that the subscription will be automatically renewed, Customer will have thirty (30) days from the date of the CharmIQ notice), by logging into and going to the “Billing” page of the “Settings” page. If Customer does not wish for the Account to renew automatically, or if Customer wants to change or terminate the subscription, Customer must log in and go to the “Billing” page on the “Settings” page. If Customer cancels or downgrades the subscription, Customer may use the subscription until the end of the then-current subscription term; the subscription will not be renewed after the then-current term expires. However, Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, Customer authorizes CharmIQ to charge the Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of the subscription, if CharmIQ does not receive payment from the Payment Provider, (a) Customer agrees to pay all amounts due on the Account upon demand and/or (b) Customer agrees that CharmIQ may either terminate or suspend the subscription and continue to attempt to charge the Payment Provider until payment is received (upon receipt of payment, the Account will be activated and for purposes of automatic renewal, the new subscription commitment period will begin as of the day payment was received).
WARRANTIES AND DISCLAIMERS.
7.1 Limited Warranty. CharmIQ represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards.
7.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY, AND NOT ANY END USER, AUTHORIZED USER, OR OTHER THIRD PARTY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 (LIMITED WARRANTY), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND CHARMIQ MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CHARMIQ DOES NOT GUARANTEE THAT CUSTOMER WILL EXCLUSIVELY OWN OR HAVE NECESSARY RIGHTS TO GENERATED CONTENT FOR CUSTOMER’S INTENDED PURPOSES, OR THAT GENERATED CONTENT WILL BE FREE FROM THIRD PARTY CONTENT. CHARMIQ DOES NOT GUARANTEE THAT THE GENERATED CONTENT OR THE CHARMIQ OFFERING WILL BE COMPLETELY SECURE, UNINTERRUPTED, ACCURATE, OR ERROR-FREE, OR SUITABLE FOR CUSTOMER’S INTENDED PURPOSE. CUSTOMER AGREES THAT CHARMIQ WILL NOT BE RESPONSIBLE FOR ANY LOSS OF CUSTOMER CONTENT OR GENERATED CONTENT OR ANY FAILURE TO MAINTAIN, STORE, OR BACKUP ANY CUSTOMER CONTENT OR GENERATED CONTENT. LAWS AND REGULATIONS GOVERNING USE OF GENERATIVE AI ARE RAPIDLY EVOLVING, AND CHARMIQ DOES NOT GUARANTEE THAT CUSTOMER’S USE OF THE CHARMIQ OFFERING OR GENERATED CONTENT WILL COMPLY WITH APPLICABLE LAWS AND REGULATIONS OR THAT FUTURE LAWS AND REGULATIONS WILL NOT IMPACT CUSTOMER’S USE THEREOF. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT IT’S USE OF THE CHARMIQ OFFERING AND GENERATED CONTENT COMPLY WITH ALL APPLICABLE LAWS. CHARMIQ HAS NO RESPONSIBILITY OR LIABILITY FOR ANY THIRD PARTY SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CHARMIQ OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. FROM TIME TO TIME, CHARMIQ MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS CUSTOMER AND THEIR AUTHORIZED USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CHARMIQ’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
INDEMNIFICATION.
8.1 By CharmIQ. CharmIQ will defend at its expense any suit brought against Customer, and will pay any settlement CharmIQ makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the CharmIQ Offering, as provided by CharmIQ to Customer, infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the CharmIQ Offering becomes, or in CharmIQ’s opinion is likely to become, the subject of a claim of infringement, CharmIQ may, at CharmIQ’s option: (a) procure for Customer the right to continue using the CharmIQ Offering; (b) replace the CharmIQ Offering with non-infringing software or services which do not materially impair the functionality of the CharmIQ Offering; (c) modify the CharmIQ Offering so that it becomes non-infringing; or (d) terminate this Agreement, and upon such termination, Customer will immediately cease all use of the CharmIQ Offering and Documentation. Notwithstanding the foregoing, CharmIQ will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the CharmIQ Offering not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the CharmIQ Offering in combination with other products, equipment, software or data not supplied by CharmIQ; (iii) any modification of the CharmIQ Offering by any person other than CharmIQ or its authorized agents; (iv) Customer Prompts; or (v) Generated Content (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of CharmIQ, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
8.2 By Customer. Customer will defend at its expense any suit brought against CharmIQ, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer’s use of the Services, including Customer Prompts and Customer’s products or services developed or offered in connection with Customer’s use of the Services or Generated Content, (c) Customer's responsibilities for storage of Customer Content as set forth in Section 4.4, (d) Customer's interactions with other users as set forth in Section 5, and including any failure to comply with applicable laws in connection therewith, or (e) Customer’s breach or alleged breach of Sections 3.2 (Restrictions), 4.2 (Customer Warranty), or 4.3 (Customer Responsibility for Data and Security). This section states the sole and exclusive remedy of CharmIQ and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
8.3 Procedure. The indemnifying party’s obligations as set forth above are conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit; provided that any delay in notice shall not relieve any indemnifying party of its obligations, except to the extent such delay prejudices the claim.
LIMITATION OF LIABILITY
9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF CHARMIQ ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF FEES PAID BY CUSTOMER TO CHARMIQ DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR $100. IN NO EVENT WILL CHARMIQ’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
CONFIDENTIALITY.
10.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of CharmIQ.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement, which permitted uses include CharmIQ’s use and disclosure to Third Party Services of Customer Prompts and Generated Content, as licensed hereunder. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to CharmIQ). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to (i) any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information; or (ii) any exercise by CharmIQ of the licenses granted to Customer Prompts and Generated Content. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
TERM AND TERMINATION
11.1 Term. This Agreement commences on the date Customer accepts it (as described in the preamble above) and will remain in full force and effect while Customer uses CharmIQ Properties, unless terminated earlier in accordance with this Agreement.
11.2 Prior Use. Notwithstanding the foregoing, Customer hereby acknowledges and agrees that the Agreement commenced on the earlier to occur of (a) the date Customer first used CharmIQ Properties or (b) the date Customer accepted the Agreement, and will remain in full force and effect while Customer uses any CharmIQ Properties, unless earlier terminated in accordance with the Agreement.
11.3 Termination by CharmIQ. If timely payment cannot be charged to Customer's Payment Provider for any reason, if Customer has materially breached any provision of the Agreement, or if CharmIQ is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), CharmIQ has the right to, immediately and without notice, suspend or terminate any Services provided to Customer. Customer agrees that all terminations for cause shall be made in CharmIQ’s sole discretion and that CharmIQ shall not be liable to Customer or any third party for any termination of Customer's Account.
11.4 Termination by Customer. Customer will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case CharmIQ will refund Customer's Service Subscription Fee, if already paid pursuant to Section 6.1 (Payment) or 6.2 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If Customer wants to terminate the Services provided by CharmIQ, Customer may do so by (a) notifying CharmIQ at any time and (b) closing Customer's Account for all of the Services that Customer uses. Customer's notice should be sent, in writing, to CharmIQ’s address specified above. The Services will continue at the end of each subscription period unless Customer cancels Customer's subscription in accordance with the procedure set forth in Section 6.5 (Automatic Renewal).
11.5 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted to Customer hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality); (c) any amounts owed to CharmIQ under this Agreement will become immediately due and payable; and (d) termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of Customer's password and all related information, files, and Content associated with or inside Customer's Account (or any part thereof), including Customer's Content; provided, that, any of Customer's Content that Customer previously Made Available in any “public” areas of the CharmIQ Properties may be retained in perpetuity. Upon termination of any Service, Customer's right to use such Service will automatically terminate immediately. Customer understands that any termination of Services may involve deletion of Customer's Content associated therewith from CharmIQ's production databases. CharmIQ will not have any liability whatsoever to Customer for any suspension or termination, including for deletion of Customer's Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.6 (Feedback), 4 (Customer Prompts and Intellectual Property), 7 (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11.5 (Effect of Termination), and 12 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
11.6 No Subsequent Registration. If Customer's registration(s) with, or ability to access, CharmIQ Properties or any other CharmIQ community, is discontinued by CharmIQ due to Customer's violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then Customer agrees that Customer shall not attempt to re-register with or access CharmIQ Properties or any CharmIQ community through use of a different member name or otherwise, and Customer acknowledges that Customer will not be entitled to receive a refund for fees related to those CharmIQ Properties to which Customer's access has been terminated. In the event that Customer violates the immediately preceding sentence, CharmIQ reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to Customer.
MISCELLANEOUS.
12.1 Dispute Resolution. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. In the event of any controversy or claim arising out of or relating to this Agreement, or any breach thereof, such controversy or claim shall be determined and settled by confidential arbitration, conducted in English, held in the borough of Manhattan, New York City, NY, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
12.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from CharmIQ, or any products utilizing such data, in violation of the United States export laws or regulations.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.6 Compliance with Law. Customer and its Authorized Users will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Documentation.
12.7 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, pandemic, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.8 Independent Contractors. Customer’s relationship to CharmIQ is that of an independent contractor, and neither party is an agent or legal partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of CharmIQ.
12.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to CharmIQ, by emailing legal@charmiq.ai, if to Customer, by emailing the email address provided by Customer during the registration process, in each case, specifically identifying this Section; provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party; in the case of CharmIQ, at the address listed on the first page of this Agreement by courier, and in the case of Customer, by email. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12.10 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 (Confidentiality) or, in the case of Customer, Section 3.2 (Restrictions), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
12.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the CharmIQ.