GENERATIVE AI SERVICES AGREEMENT
This is an archived page of our August 2023 Terms of Use
This Generative AI Services 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.
DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
“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 Offering.
“Authorized User” means each of Customer or Customer’s employees (collectively “Customer”) who are authorized to access the CharmIQ Offering pursuant to Customer’s rights under this Agreement.
“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.
“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.
“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.
“Generated Content” means output generated and returned by the Services based on Customer Prompts.
“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.
“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.
“Services” means the Generative AI services provided by CharmIQ to Customer under this Agreement through which CharmIQ provides the CharmIQ Offering.
PROVISION OF SERVICES.
Access. Subject to the terms and conditions of this Agreement, CharmIQ will provide Authorized Users with access to the CharmIQ Offering 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 Offering 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 Offering, and notify CharmIQ promptly of any such unauthorized use known to them.
Registration. To access the CharmIQ Offering, 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 Service (or any portion thereof).
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.
Necessary Equipment and Software. Customer must provide all equipment and software necessary to access the CharmIQ Offering. Customer is solely responsible for any fees, including Internet connection or mobile fees, that Customer (including its Authorized Users) incurs when accessing the CharmIQ Offering.
CHARMIQ OFFERING AND INTELLECTUAL PROPERTY.
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 10.5 (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.
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) modify, copy or make derivative works based on any part of the CharmIQ Offering or Documentation; (g) access or use the CharmIQ Offering to build a similar or competitive product or service; (h) attempt to access the CharmIQ Offering through any unapproved interface; or (i) 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.
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.
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 6 (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 below.
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, OpenAI, video segmentation models, and any third party services you select as data sources (“Third Party Services”). When you access or use Third Party Services, or data provided thereby, you 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.
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.
Ownership by Customer; License.
Customer Prompts. The Customer Prompts, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Prompts. Customer will obtain all third party licenses, consents and permissions needed for CharmIQ to use the Customer Prompts 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 Prompts 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 Prompts as necessary for purposes of providing and improving the Services, including by sharing the Customer Prompts with Third Party Services, as applicable, and (b) use the Customer Prompts 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 Prompts not expressly granted to CharmIQ in this Agreement are reserved by Customer.
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.
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.
Customer Warranty. Customer represents and warrants that any Customer Prompts 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 4.3 (Customer Warranty) constitutes unauthorized and improper use of the CharmIQ Offering.
Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Prompts and will be responsible for all changes to and/or deletions of Customer Prompts 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 Prompts and Generated Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Prompts.
WARRANTIES AND DISCLAIMERS.
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.
Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 (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 5.1 (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 PROMPTS OR GENERATED CONTENT OR ANY FAILURE TO MAINTAIN, STORE, OR BACKUP ANY CUSTOMER PROMPTS 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.
CHARMIQ PROVIDES THE CHARMIQ OFFERING THROUGH THE SERVICES, IN PART, TO GIVE CUSTOMERS A GENERATIVE AI SOLUTION CUSTOMIZED TO PROVIDE A GENERAL UNDERSTANDING OF CERTAIN PRIVACY COMPLIANCE REQUIREMENTS. THE INFORMATION PROVIDED BY CHARMIQ, ALONG WITH THE GENERATED CONTENT AS IT RELATES TO PRIVACY RULES AND REQUIREMENTS IS PROVIDED FOR GENERALIZED KNOWLEDGE AND PRIVATE USE, AND DOES NOT CONSTITUTE LEGAL ADVICE. PRIVACY LAWS AND REGULATIONS AND ASSOCIATED ENFORCEMENT ACTIONS AND INTERPRETATIONS CHANGE REGULARLY, AND THE TRAINED MODELS UNDERLYING THE CHARMIQ OFFERING REPRESENT ONLY A SNAPSHOT IN TIME. AS SUCH, CHARMIQ CANNOT GUARANTEE THAT ANY GENERATED CONTENT WILL BE COMPLETE, ACCURATE, OR CURRENT. CHARMIQ AND THE CHARMIQ OFFERING DO NOT REVIEW ANY CUSTOMER PROMPTS OR GENERATED CONTENT FOR ACCURACY OR SUFFICIENCY, DRAW LEGAL CONCLUSIONS, OR APPLY THE LAW TO THE FACTS OF CUSTOMER’S SITUATION. IF CUSTOMER DESIRES TO OBTAIN LEGAL ADVICE FOR A SPECIFIC ISSUE, CUSTOMER SHOULD SEEK THE SERVICES OF A QUALIFIED ATTORNEY LICENSED TO PRACTICE IN THE APPROPRIATE JURISDICTIONS. CHARMIQ, THE SERVICES, AND GENERATED CONTENT ARE NOT A SUBSTITUTE FOR THE ADVICE OR SERVICES OF A LICENSED ATTORNEY.
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.
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.
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, and including any failure to comply with applicable laws in connection therewith, or (c) 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.
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
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.
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.
Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 (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.
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.
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.
Exceptions. The confidentiality obligations set forth in Section 8.2 (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.
Term. The initial term of this Agreement begins on the Effective Date and, unless earlier terminated in accordance with the Agreement, will continue in full force and effect until the one (1) year anniversary of such date (the “Initial Term”). This Agreement will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”).
Termination. Prior to the first day of each month, either party may terminate the Agreement upon thirty (30) days’ prior written notice, which termination shall take effect upon the first full month commencing after the expiration of such thirty (30) day period. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
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 8 (Confidentiality); and (c) any amounts owed to CharmIQ under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.6 (Feedback), 4 (Customer Prompts and Intellectual Property), 5.2 (Disclaimer), 6 (Indemnification), 7 (Limitation of Liability), 8 (Confidentiality), 9.3 (Effect of Termination), and 10 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
MISCELLANEOUS.
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.
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.
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.
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.
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.
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.
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.
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.
Notices. All notices required or permitted under this agreement must be delivered in writing, if to CharmIQ, by emailing legal@CharmIQ.com, 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.
Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 (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.
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.