Effective Date: March 5, 2024
THE SERVICES ARE NOT INTENDED FOR CHILDREN UNDER 18, and persons under the age of 18 are prohibited from registering with or using the Services. You represent and warrant that you are more than 18 years of age. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions. You represent and warrant that: (a) you have the legal capacity to agree to the Terms; (b) you are not located in a country embargoed by the United States and that you are not on the U.S. Treasury Department's list of Specially Designated Nationals; and (c) you will comply with all applicable laws and regulations in connection with your use of the Services, and in accordance with the terms and conditions specified in the Terms.
By accepting these Terms during your account registration, your Purchase process, or while using the Offerings (including access, enablement or utilization based on a “free,” “evaluation,” “beta,” or “trial” basis), you accept and agree to these Terms and to be a party to this binding contract. If you do not agree to these Terms, you may not Purchase or use our Offerings. You agree to these Terms on behalf of the company or other legal entity for which you are acting (for example, as an employee or contractor) or, if you are not acting on behalf of a company or other legal entity, on behalf of yourself as an individual. “You” refers to the entity or individual that is a party to these Terms. You represent and warrant that you have the right, authority, and capacity (for example, you are of sufficient legal age) to act on behalf of and bind such entity (if any) and yourself.
All sales are final and no refunds will be allowed except as required by law.
To access and/or use most Offerings, you must register for a “Charmed Account”. To create a Charmed Account, you will be required to provide certain information and you will either establish a username and a password or login with a Charmed-approved authentication method. Your account is accessible at https://charmed.ai/ or at another site as designated by Charmed. You are responsible for anyone who Purchases or uses Offerings through you or your Charmed Account, and any act or omission of any such person that is not in compliance with these Terms will constitute an act or omission by you. You are responsible for safeguarding your password, and you may not disclose your password to any third party. You will immediately notify Charmed of any unauthorized use of your account.
Any information you provide to us must be accurate, current and complete, and you will update such information to keep it accurate, current and complete, and Charmed may suspend or terminate your Charmed Account in accordance with these Terms if any information you provide to us proves to be inaccurate, not current or incomplete.
You may close your account at any time, provided that you have paid any and all remaining amounts owed to Charmed beforehand, by sending an email to support@charmed.ai.
If your Charmed Account is canceled, terminated or suspended, you will lose the ability to access and use such Charmed Account and any User Content that you have uploaded or stored using any Offering. Charmed may immediately delete such User Content at the time of cancellation, termination or suspension of such Charmed Account, and Charmed will not be liable to you or any third party in connection with such deletion of your User Content or your loss of access and use of such Charmed Account.,
Your User Content is yours. Except as expressly granted to Charmed under these Terms, you retain your ownership rights to User Content until you decide to transfer those rights.
Charmed may collect, use, store and process personal information of or relating to you. For clarity, this includes personal information provided to Charmed as part of any User Offering Data. You acknowledge and agree that Charmed may deliver messages and contact you about the Offerings. You may request deletion of personal information relating to you by sending an email to support@charmed.ai.
In order for you to access and use certain Offerings, or for Charmed to provide you with certain services, you may provide User Offering Data to Charmed. When you provide or make accessible User Offering Data to Charmed, you authorize, and hereby grant the right and license to Charmed and its designees to use User Offering Data to provide, develop and improve the Offerings and other Charmed services and to provide support services to you hereunder, and if applicable, you will provide all notices and obtain all required consents from End Users in order to permit the foregoing. The foregoing right and license is non-exclusive, transferable (in accordance with the “Assignment” section hereof), worldwide, royalty-free and fully paid-up.
With respect to any End User data resulting from your or any End User’s use of any of the Offerings, you agree that Charmed may use the End User data therein in accordance with these Terms. From time to time, Charmed may, notwithstanding any other provision of these Terms, use aggregated or de-identified End User data for research and marketing purposes and to provide, develop and improve the Offerings and other Charmed services and to provide technical support services to you hereunder. You agree that Charmed has the right to process, in an aggregate manner and subject to the terms of its current privacy policy, information collected in your use of the Offering, including, without limitation, data collected via the Offering on the characteristics and activities of End Users on your Projects.
Except as expressly required by Charmed (for example when we require a credit card number for you to purchase a subscription), or as permitted by Charmed for information uploaded through the use of an Offering, you will not upload or otherwise make available to Charmed any Sensitive Personal Information, including any files containing Sensitive Personal Information, in connection with your use of any Offering. “Sensitive Personal Information” means Social Security number, credit or debit card number, financial account number, driver’s license or other governmental ID number, medical information, health insurance information, information related to race or ethnic origin, religion or other beliefs, political affiliation or opinions, genetic or biometric data, criminal background, sexual orientation, trade union membership, or any other information that may pose a risk of harm to an individual if improperly accessed, disclosed or used.
You represent and warrant that in respect of any data collected by Charmed, provided by you to Charmed, or to which you grant Charmed access under or in connection with these Terms that constitutes “personal data” or “personal information” as defined under applicable privacy and data protection laws, that you have and will comply with such laws.
If you subscribe to or access and use (as otherwise permitted by Charmed) any Online Service, then Charmed will provide those Online Services to you on the basis set forth in the Offering Identification. For example, if the Online Service is offered on a subscription basis, Charmed will provide such Online Service to you for your subscription term, or if the Online Service is offered for a flat fee or on a pay-for-consumption basis, then Charmed will provide such Online Service to you for so long as the amounts due are paid on a timely basis, in each subject to your compliance with these Terms and payment obligations.
For any Offering consisting of an Online Service that Charmed makes available to you, Charmed hereby grants you a non-exclusive, limited, revocable, non-transferable, non-sublicensable right to access and use the Offering, in the form made available by or for Charmed, solely for your personal and internal business purposes and in accordance with the Documentation for the Offering. The foregoing rights are and remain subject to and conditioned on your compliance with these Terms and any applicable Additional Terms, all payment obligations and any eligibility requirements as set forth in the Offering Identification or Documentation. No right to use or access any other Charmed Offering is granted or implied by your use of the Offering. You may not access or use any Offerings that are not included in your Purchase.
You may be required to log into your account to Purchase (or to continue accessing or using) an Offering.
In connection with an Offering, you may have access to Charmed Materials. For any Charmed Materials that Charmed makes available to you, Charmed hereby grants you a non-exclusive, limited, revocable, non-transferable, non-sublicensable right to access and use the Charmed Materials, in the form made available by or for Charmed, solely for your internal business purposes and in accordance with the Documentation for the Charmed Materials. The foregoing rights are and remain subject to and conditioned on your compliance with these Terms and any applicable Additional Terms and all payment obligations.
Certain Charmed Materials are subject to Additional Terms, and your right to use such Charmed Materials are subject to those Additional Terms. All Charmed Materials are confidential and proprietary to Charmed. You may not and are not authorized to distribute or disclose Charmed Materials to any third party or use them for any purpose other than as expressly permitted by these Terms. Unless otherwise authorized by Charmed in writing, if you develop any applications, services or modules using all or any portion of the Charmed Materials (collectively, “Developed Materials”), you may use your Developed Materials with third-party software or hardware, but only if you remove from your Developed Materials all elements of the Charmed Materials (including any elements based on the Charmed Materials), and your Developed Materials (a) do not disclose, make available, incorporate or embody any part of the Charmed Materials and (b) do not incorporate or embody any part of the Offerings or other Charmed intellectual property.
In order for you to access or use certain Offerings, or for Charmed to provide you with certain services, you may wish to upload or otherwise share User Content. Charmed will not use User Content except (a) at your request or with your consent, (b) in connection with providing, supporting, securing, updating, modifying, improving, promoting or developing Offerings, or (c) in connection with legal obligations, enforcement, investigations or proceedings. Charmed does not undertake any legal obligation to monitor, pre-screen, review, flag, filter, modify, refuse or remove any or all User Content, however, Charmed reserves the right to do so, and if Charmed becomes aware and/or determines in its sole discretion that User Content does not comply with these Terms, Charmed may remove such User Content. When you provide or make accessible User Content, you authorize, and hereby grant the right and license to Charmed and its designees to use, reproduce, modify, perform and display, and distribute and make available User Content in connection with the Offerings and other activities contemplated by these Terms. The foregoing right is non-exclusive, transferable (in accordance with these Terms), worldwide, royalty-free and fully paid-up.
You (i) are responsible for ensuring that User Content and its use with any Offering comply with all applicable laws and regulations and these Terms, and (ii) warrant that User Content will not infringe or misappropriate any intellectual property or proprietary rights of any person (including privacy and publicity rights) or violate any applicable laws or regulations. You may not represent or imply to others that User Content is in any way provided, sponsored or endorsed by Charmed. You acknowledge that online services may suffer disruptions or outages, and you may not be able to retrieve User Content as a result. You are responsible for securing User Content and storing and maintaining backup copies.
Some Offerings permit you to collaborate with others, including sharing or publishing User Content. If you choose to share or publish User Content, others may be able to use, sell, reproduce, modify, distribute, make available, display, transmit and communicate User Content. If you do not want that to happen, do not use the sharing, publishing or other collaboration features of the Offerings and set your permissions accordingly. Keep in mind that forums and galleries may be public, and submissions to them are generally public.
For Publicly Visible User Content, Charmed and its successors retain worldwide perpetual rights to use, copy, reproduce, process, adapt, modify, publish, transmit, create derivative works of, publicly display, publicly perform, sublicense, and distribute text prompts and images you input into the services, or any assets produced by the service at your direction. Charmed retains the rights to make the assets available to the public, and use them commercially for the purposes of providing, maintaining, promoting, and improving the services.
Additionally, other Charmed Account holders are granted a worldwide, non-exclusive, royalty-free license to access these Publicly Visible User Content through the service and to use those User Content (including reproducing, distributing, modifying, displaying, and performing them) as enabled by features of the service.
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) through a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Company with your credit card number and associated payment information, you agree that Company is authorized to immediately invoice your Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required. You agree to immediately notify Company of any change in your billing address or the credit card used for payment hereunder. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on Company Properties or by e-mail delivery to you.
You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Company for the Services until Company accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
The payments required under Section 10.2 (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 Company determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Company shall collect such Sales Tax in addition to the payments required under Section 10.2 (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 you have not remitted the applicable Sales Tax to Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Company for any liability or expense Company may incur in connection with such Sales Taxes. Upon Company’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have 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.
You agree to make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Company will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your 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 Company’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Company that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Company notice). If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please log in and go to the “Subscription” page on your “My Profile” page. If you cancel or downgrade your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Company to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Company does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Company may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
You are not entitled to any support or maintenance rights under these Terms, and any technical support may be offered by Charmed at its sole discretion. Charmed has no obligation under these Terms to provide updates or upgrades to any Offering, and may choose to do so at its sole discretion. Notwithstanding the foregoing, Charmed may make available certain support or maintenance for an Offering as set forth in Commercial Terms, as identified in an applicable Offering Identification or Documentation or as set forth for certain Online Services in the applicable service level agreement.
You have no obligation to provide Charmed with ideas for improvement, suggestions or other feedback (collectively, “Feedback”) unless otherwise specified in the Additional Terms for an Offering. If, however, you provide any Feedback, you hereby grant to Charmed a right and license to make, use, offer to sell, reproduce, modify, distribute, sublicense, make available, publicly display and perform, disclose and otherwise exploit the Feedback without restriction or obligation. The foregoing right is non-exclusive, transferable (in accordance with these Terms), irrevocable, worldwide, royalty-free and fully paid-up.
Due to the large variety of potential applications for the Offerings, Charmed makes no representations that the Offerings have been designed or tested for any specific uses, and it is your responsibility to determine whether the use of an Offering is appropriate for your purposes. Charmed will not be responsible or liable in any manner whatsoever for the results obtained through use of the Offerings, including any Projects. You are responsible for your use of the Offerings and any results produced by the Offerings, including any Projects. Your responsibilities include determining appropriate uses for the Offerings and selecting the Offerings and other software and materials to help achieve your intended results. You acknowledge that the Offerings and Projects may not achieve the results you desire within your design, analysis, testing and other constraints.
You will access and use (and permit access to and use of) Offerings only in conformance with (and will comply with) these Terms (including any Commercial Terms or Additional Terms), Policies, Documentation, and all applicable laws. Your breach of this “Use Restrictions” section shall immediately and without further action terminate the rights granted under these Terms and any applicable Additional Terms. Except as expressly authorized by these Terms (including any Commercial Terms or Additional Terms), Policies, Documentation or as otherwise expressly permitted in writing by Charmed, you will not (and will not authorize, encourage or cooperate with any third party to):
(a) Reproduce, modify, adapt, translate, port or create derivative works of all or any portion of any Offering, except as expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary;
(b) Sublicense, distribute, transmit, sell, lease, rent, loan or otherwise make available all or any portion of any Offering (including any functionality of any Offering) to a third party or provide any functionality of any Offering to a third party (whether by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other technology or service or otherwise);
(c) Remove any copyright, trademark, confidentiality or other proprietary rights notice from any Offering, Documentation or related material;
(d) Remove, disable or otherwise limit the effectiveness of any technical protections, including those used by Charmed to (i) manage, monitor, control or analyze the installation of, access to, or use of any Offering or (ii) protect Charmed’s intellectual property rights;
(e) Engage in any decompiling, disassembling or other reverse engineering or otherwise attempting to discover, learn or study the structure or organization, underlying algorithms or other internals, protocols, data structures or other externals, or the source code of the Offerings, including any Charmed Materials, except as expressly permitted under the applicable law notwithstanding a contractual prohibition to the contrary;
(f) Breach, or attempt to breach or circumvent, any security or authentication measures used by any Offering;
(g) Access or attempt to access the Offerings by any means other than the interface Charmed provides or authorizes;
(h) Unbundle the component parts of any Offering for use separate from each other or use or access Software made available as part of an Online Service separately from the applicable Online Service;
(i) Attempt to circumvent any capacity limits, Authorized User or storage limits, or other license, timing or use restrictions associated with any Offering, or attempt to interfere with Charmed’s ability to audit or track such restrictions;
(j) Take any action (including the use of any third party software or services) that interferes with, disrupts, burdens or interacts in an unauthorized manner with any part of any Offering or the Dashboard (including any related devices, computer systems, servers or networks);
(k) Introduce any viruses, worms, defects, malware or any item of destructive nature through any Offering;
(l) Use automated means (including “web crawlers,” bots, robots, spiders, scrapers or other types of software or hardware technology) to collect content or information, download materials automatically or otherwise access any Offering;
(m) Use any Offering to provide or assist any content delivery network functionality;
(n) Develop, distribute or publish any Project in connection with any gambling product or service offered in any market or application that is regulated by any local, state or national authority and requires a gambling license;
(o) Develop, distribute or publish any Project in connection with any product or service that competes with, or functions similarly to, any Offering without a separate grant of rights from Charmed or otherwise provided for in the applicable Additional Terms;
(p) Use the Offerings or User Offering Data for competitive analysis (including benchmark testing) to create, train or improve (directly or indirectly) a product or service that substantially replicates any Charmed Offering, or to acquire any technical specifications or gain any competitive advantage;
(q) Monetize any runtime version of Software, including Charmed Materials, without a separate grant of rights from Charmed or otherwise provided for in the applicable Additional Terms;
(r) If you are using an Educational Version of any Software, use such Software and distribute the runtime version of such Software for any purpose that is not educational and non-commercial;
(s) Combine, use or distribute the Offerings with other software that could cause or result in the Offering to be subject to any open source license or similar license that: (i) requires as a condition of use, modification or distribution that the Offering or such other software to be: (1) made available or distributed in a form other than binary (e.g., in source code form); (2) licensed for the purpose of making derivative works; (3) licensed under terms that allow for reverse engineering, reverse assembling or disassembling of the Offering (other than as required to by law); or (iv) redistributable at no charge; or (ii) requires or purports to require the grant of any license, covenant not to sue, authorization or other right with respect to patents or patent applications;
(t) Collect or process data from an End User by any means other than those provided or authorized by Charmed or without an End User’s opt-in authorization;
(u) Send or otherwise post unsolicited or unauthorized communications, including commercial communications (such as spam) through any Offering;
(v) Access, store, distribute, introduce, or transmit any material during the course of its use of the Offerings which is false, deceptive, misleading, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or is otherwise illegal or causes damage or injury to any person or property, or authorize or otherwise permit any third party, including but not limited to End-Users, to do so;
(w) Create Internet “links” to an Offering that are not associated with, connected or related to the Offering;
(x) Abuse referrals or promotions or other activity to receive additional Entitlements;
(y) Harass or interfere with any other user’s use of any Offering;
(z) Impersonate any person or entity, including any Charmed employee or representative; or
(aa) Use or access any Offering other than in accordance with applicable Documentation, Offering Identification or Policies.
Charmed (as the “Disclosing Party”) may disclose or make available Confidential Information to You (as the “Receiving Party”) in connection with these Terms. You agree not to disclose the Charmed’s Confidential Information to any third party without Charmed’s prior written consent, other than to Your employees, agents and consultants who need to know such information to carry out the purposes contemplated by these Terms and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein.
You agree to use at least the same degree of care to prevent unauthorized use and disclosure of Confidential Information as You use with respect to its own confidential information of like importance (but in no event less than a reasonable degree of care).
You may use or disclose Confidential Information to the extent (a) approved by Charmed in writing or (b) You are legally compelled to disclose such Confidential Information provided, however, that prior to any such compelled disclosure, You shall give Charmed reasonable advance notice of any such disclosure and shall cooperate with Charmed in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
At any time at Charmed’s request, You shall promptly return to Charmed or destroy all materials (in written, electronic or other form) containing Charmed’s Confidential Information, including any copies and extracts thereof, and so certify in writing to Charmed. It is not a breach of the foregoing obligation to the extent Charmed’s Confidential Information is contained in an electronic file created pursuant to Your routine backup or archiving procedures if such file is not easily deleted and is not generally accessible beyond the need for disaster recovery or similar operations.
You authorize, and hereby grant the right and license to, Charmed and its designees to use, reproduce, perform and display, and distribute and make available your trade names, trademarks, service marks, logos, domain names, and other brand features for the purpose of advertising or publicizing the Offerings but not to brand the Offerings. The foregoing right is non-exclusive, transferable (in accordance with the Assignment section hereof), worldwide, royalty-free and fully paid-up.
Charmed and its licensors and service providers own all intellectual property and other rights with respect to (a) the Offerings, Documentation, the Site, Charmed Materials and other information or material made available to you by or for Charmed, including any copies of the foregoing, (b) the structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of any of the foregoing, and (c) any materials or other information based on, derived from or otherwise using any of the foregoing (including Usage Data and Reporting Data). You do not obtain any rights to the foregoing except as set forth in these Terms and hereby assign to Charmed any rights in the foregoing.
You have only the rights expressly granted to you under these Terms (including any Commercial Terms or Additional Terms). All rights not expressly granted are reserved by Charmed and its licensors and service providers. You agree not to take any action, or to authorize or encourage any third party to take any action (or cooperate with any third party in taking any action), inconsistent with the foregoing.
Other than as available under applicable law, Charmed offers no further implied or statutory warranties or conditions with regard to the Offerings, and explicitly disclaims all implied warranties and conditions to the maximum extent permitted by applicable law.
THE OFFERINGS AND ANY DOCUMENTATION ARE ALL PROVIDED BY CHARMED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. CHARMED AND ITS LICENSORS AND SERVICE PROVIDERS DO NOT WARRANT OR REPRESENT THAT THE OFFERINGS AND ANY DOCUMENTATION, OR ANY PART THEREOF, WILL OPERATE UNINTERRUPTED OR ERROR-FREE. CHARMED AND ITS LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CHARMED KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CHARMED OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS.
YOU WILL BE SOLELY RESPONSIBLE FOR THE ACCURACY AND QUALITY OF USER CONTENT, AND YOU UNDERSTAND THAT YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH YOUR USE OF THE OFFERINGS, DOCUMENTATION AND ANY THIRD-PARTY MATERIALS, OR YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE OFFERINGS, DOCUMENTATION AND ANY THIRD-PARTY MATERIALS. CHARMED AND ITS LICENSORS AND SERVICE PROVIDERS HAVE NO OBLIGATION TO VERIFY THE IDENTITY OF USERS ACCESSING AND USING THE OFFERINGS, OR TO MONITOR THE USE OF OFFERINGS BY USERS. CHARMED AND ITS LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
Charmed’s aggregate liability arising out of or relating to these Terms, any Offering or any Projects thereof or related Third-Party Materials or Documentation will not exceed the greater of (a) $100 or (b) the total fees paid or payable by you to Charmed for the relevant Offering in the six (6) months before the dispute.
In no event will Charmed or any licensors or service providers of Charmed have any liability (directly or indirectly) for any incidental, special, indirect, consequential or punitive damages; loss of profits or revenue; business interruption or loss of use; cost of procurement of substitute goods or services or other cover; failure of or defects in any Projects or Third-Party Materials; loss, corruption or deletion of (or failure to delete) data or User Content; or damages resulting from Force Majeure.
The limitations on liability in these Terms will apply to the maximum extent permitted by applicable law to any damages or other liability, however caused and regardless of the theory of liability, whether based on contract, tort (including negligence and strict liability), indemnification, recourse, statute or otherwise, and even if Charmed and its licensors and service providers have been advised of the possibility of the liability or the liability is otherwise foreseeable, and regardless of whether the limited remedies in these Terms fail of their essential purpose.
You acknowledge that the amounts payable for the Offerings are based in part on and reflective of the disclaimers of warranties and limitations on liability in these Terms and that such disclaimers and limitations are an essential element of the bargain between you and Charmed.
Nothing in these Terms purports to restrict or exclude Charmed’s liability for your damages or losses caused by Charmed’s fraud, willful misconduct or gross negligence.
Charmed does not seek to limit your warranties, other rights and remedies or the liability of Charmed for damages or losses to the extent the limits are not permitted by applicable law (such as statutory warranties, conditions, remedies or liabilities that cannot be excluded by applicable law). Nothing in these Terms restricts the effect of warranties, the liability of Charmed for damages or losses or other terms that cannot be excluded or otherwise modified under applicable law notwithstanding a contractual restriction to the contrary. These Terms give you specific legal rights, and you may also have other legal rights, which vary from jurisdiction to jurisdiction. For example, some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
You will indemnify and hold Charmed harmless (and, at Charmed’s request, defend Charmed) against any and all losses, liabilities, costs and expenses (including reasonable attorneys’ fees) suffered or incurred by Charmed by reason of any claim, suit or proceeding (“Claim”) arising out of or relating to (a) User Content, (b) your access to or use of Offerings, Documentation and Third-Party Materials, including any Projects, Developed Materials or other results produced by such use, (c) your breach or any acts or omissions that, if true, would be a breach of these Terms (including any Commercial Terms or Additional Terms), and (d) your breach or alleged breach of any applicable law or regulation.
At Charmed’s option, you will assume control of the defense, but Charmed retains the right to elect to take over defense at any time. You may not enter into a settlement under this clause without Charmed’s prior written approval.
These Terms become effective on the first date accepted in accordance with the Acceptance section (Section 2) and continue in effect indefinitely unless terminated in accordance with this Term, Termination, Suspension section.
You may terminate these Terms if Charmed is in material breach of these Terms and fails to cure such breach within thirty (30) days after written notice of the breach.
Charmed may terminate (or disable or suspend your access to and use of) any or all Offerings, or terminate these Terms and/or your account, if (a) you have no currently active Commercial Terms, (b) you have failed to timely pay any amounts (including fees and taxes) owing to Charmed, (c) any information you provide to us proves to be inaccurate, not current or incomplete, (d) you fail to make all payments when due, (e) you are otherwise in breach of these Terms, or (f) you become subject to bankruptcy or insolvency proceedings, become insolvent, make an arrangement with or affecting your creditors (including an assignment for the benefit of creditor) to commence a process of liquidation. These Terms will automatically terminate without further notice or action by Charmed if you go into liquidation. Charmed may also immediately disable or suspend your access to and use of Offerings and User Content if Charmed believes in good faith that your conduct or failure to act, or User Content, may (i) pose a security risk or otherwise adversely impact Offerings, systems or other users, (ii) constitute or enable tampering with, removing, disabling or otherwise limiting the effectiveness of any technical protections, or (iii) subject Charmed, any reseller or any other user to liability.
Upon expiration or termination of a subscription or other Offering for any reason, your rights with respect to that Offering, including any related Software rights or Entitlements, will end. At that time, you will stop all access to and use of the Offering and uninstall any and all copies of materials related to such Offering (including any related Software, Documentation, Charmed Materials or other material from Charmed). In addition, at Charmed’s request, you will destroy any such copies or return them to Charmed or the reseller from which you acquired the Offering. You will retain proof that you returned or destroyed all such copies. You may no longer access any User Content that was previously submitted via the Offering, and Charmed will have no obligation to maintain or forward such User Content. You will remain liable for all fees and charges owing for the Offering, and Charmed will be entitled to deduct any outstanding charges from your billing account. If Charmed suspends, disables or terminates your access to an Offering due to your breach, no refunds will be provided
Upon any termination of these Terms for any reason, (a) your account and your subscriptions and other Offerings, including those of your Authorized Users, and all rights granted to you under these Terms will immediately terminate, and (b) the effects described above with respect to expiration or termination of a subscription or other Offering will apply to all subscriptions and other Offerings. Your payment obligations, your responsibility for anyone who has obtains, accesses or uses Offerings through you or your account, and the following sections of these Terms will survive termination for any reason: User Content, Data, Charmed Materials, Use of User Content, Collaboration and Sharing of User Content, Feedback, Limitations on Use, Confidentiality, Charmed Proprietary Rights, Disclaimers, Limitations on Liability, Indemnity, Effect of Termination of Terms, Miscellaneous, and Definitions.
You acknowledge that Charmed may from time to time modify, discontinue, substitute or terminate an Offering (including any Entitlements), including during a paid subscription term, or add or modify license keys, authorizations or other means of controlling access to or use of the Offerings, when needed to comply with applicable law or regulation, or for justified commercial, security or operational reasons, including to make any improvements to access and use of the Offerings. Charmed may change the price of an Offering, including the renewal price of a subscription as of the next renewal date, and we will provide you with prior notice if we do so. Prior to the effective date of your subscription renewal (which will be indicated in the notice provided to you), you can elect to cancel an automatic renewal for your subscription at any time and for any reason (including if you do not agree to a price change).
To the maximum extent permitted by applicable law, Charmed reserves the right from time to time to (and you acknowledge that Charmed may) modify these Terms (including, for the avoidance of doubt, the Additional Terms) without prior notice. If we modify these Terms, we will post the modification on the Site or otherwise provide you with notice of the modification. We will also update the “Last updated” date at the top of these Terms. By continuing to access or use the Offerings after we have provided you with notice of a modification, you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
Notwithstanding this section, if the Additional Terms, Commercial Terms, Documentation or Policies include different terms or procedures related to modification of those policies and terms, modification may, at Charmed’s option, be handled as described in those policies and terms.
You acknowledge that your commitments with respect to the Offerings are not contingent on delivery of future features or functionality (or oral or written statements about future features or functionality).
The English language version of these Terms will be the version used when interpreting or construing these Terms, and any notices or other communications in connection with these Terms will be provided in the English language. Any reference in these Terms to “days” are to calendar days unless otherwise specified. The words “including” and “for example” or “e.g.,” and words of similar import, are not limiting or exclusive and will be deemed followed by “without limitation,” whether or not such language is included. Section and other headings are for ease of reference only and are not to be used to interpret the meaning of any provision. Any rights and remedies provided for in these Terms are cumulative and are in addition to, and not in lieu of, any other rights and remedies available under applicable law.
The governing law of these Terms will be the substantive laws of the State of Washington without regard to its conflicts of law principles. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts of King County, Washington. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
In case of a dispute between the parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in King County, WA, USA. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of Washington State. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
Neither party will be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquake, fire, health emergency, flood, sanctions, embargoes, trade controls, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of service providers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the Internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities and severe weather (“Force Majeure”). The affected party will give the other party prompt written notice (when possible) of the failure to perform and use its reasonable efforts to limit the resulting delay in its performance.
You, your directors, employees, contractors, and Affiliates will comply with all applicable U.S. laws and regulations on export, import, economic sanctions, and antiboycott, including but not limited to: the Export Administration Regulations administered by the U.S. Department of Commerce’s Bureau of Industry and Security); the Foreign Trade Regulations administered by the U.S. Department of Commerce’s Bureau of the Census, the U.S. Customs and Border Protection regulations administered by the U.S Department of Homeland Security; the International Traffic in Arms Regulations administered by the U.S. Department of State's Directorate of Defense Trade Controls; economic sanctions regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control; and applicable laws and regulations on export, import, economic sanctions, and antiboycott outside the United States where you, your directors, employees, contractors, and Affiliates conduct business (collectively, “Trade Controls”). You will comply with, and be solely responsible for compliance with, all applicable Trade Controls related to your access to and use of Offerings and your Projects and User Content, and you will establish and maintain controls, policies and procedures to comply with applicable Trade Controls.
You confirm that none of you, your directors, employees, contractors, or Affiliates: (a) are individuals or entities identified on, or owned or controlled by or acting on behalf of entities identified on applicable Trade Controls restricted party lists (such as the List of Specially Designated Nationals and Blocked Persons, Foreign Sanctions Evaders List, Denied Persons List, Unverified List, and Entity List) (collectively, “Restricted Parties”), (b) are entities owned or controlled by one or more Restricted Parties, (c) do business in countries or regions subject to comprehensive Trade Controls, including Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine, (“Sanctioned Countries”) or with government-affiliated entities in Sanctioned Countries, or (d) Will engage in or facilitate any activities with Sanctioned Countries or Restricted Parties.
Neither you, your directors, employees, contractors, or Affiliates, will (i) engage in or facilitate activities directly or indirectly related to any end-uses that are restricted by Trade Controls (including but not limited to nuclear, missiles, chemical or biological weapons end-uses) or (ii) export, re-export, store, host or otherwise transfer your data (or data made available to you), information, services or other activities subject to any applicable export licensing requirement or authorization under Trade Controls without obtaining the appropriate export license or authorization, and will at all times comply with the terms and conditions of such export licenses and authorizations. Upon the request of Charmed, you will notify Charmed of the applicable export control classifications applicable to your products, software and technology, and any export licenses or authorizations.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without Charmed’s prior written consent, and any attempt to do so in breach of the foregoing will be null and void. Charmed may assign these Terms and delegate its obligations under these Terms at any time and without notice.
If and to the extent any provision of these Terms is held unenforceable under applicable law, (a) such provision will be deemed modified to the extent reasonably necessary to conform to applicable law but to give maximum effect to the intent of the parties set forth in these Terms, and (b) such provision will be ineffective only as to the jurisdiction in which it is held unenforceable without affecting enforceability in any other jurisdiction.
Any notices by you to Charmed will be sent via email to legal_notices@charmed.ai. Such notices will be effective when received by Charmed.
Charmed will deliver all notices, approvals or other communications required or permitted under these Terms, including those regarding modifications to these Terms: (a) via e-mail (in each case to the address that you provide), (b) by posting to the Site, or your account, or (c) in any other manner deemed reasonable by Charmed that involves specific notification to you. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
These Terms, including all exhibits and any Commercial Terms and Additional Terms (which are incorporated by reference in these Terms), constitute the entire agreement between you and Charmed (and merge and supersede any prior or contemporaneous agreements, discussions, communications, representations, warranties, advertising or understandings) with respect to the subject matter hereof. Any access to or use of an Offering is expressly conditioned on the application of these Terms, and any other terms are expressly rejected.
If there is any conflict between these Terms of Service and any Additional Terms, the Additional Terms will control in relation to their subject matter. If there is any conflict between these Terms of Service or the Additional Terms and the Commercial Terms, the Commercial Terms will control in relation to its subject matter to the extent set forth in the Commercial Terms.
The English language version of these Terms is legally binding in case of any inconsistencies between the English version and any translations. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to these Terms are hereby rejected by Charmed and will be deemed null.
Failure to enforce or exercise any provision of these Terms is not a waiver of such provision, unless such waiver is specified in writing and signed by the party against which the waiver is asserted.
You (and your third party service providers) may not, without Charmed’s express written permission: (1) use a stylized version of any Charmed name, trademark, logos, images or product icons, or other Charmed-owned graphic symbols; (2) use a product name confusingly similar to a Charmed product or that could be construed by Charmed developers as being a Charmed product or service; or (3) create or use any marketing materials that suggest an affiliation with, or endorsement by, Charmed.
“Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with a party.
“Authorized Users” means (a) you (if you are an individual) and (b) identified individuals (such as your individual employees, consultants and contractors and other individuals accessing and using an Offering for your benefit) for whom you have acquired a subscription to an Offering
“Confidential Information” means information that is disclosed by Charmed to You that is (a) marked or verbally designated as “confidential” or the like or (b) that given the circumstances surrounding its disclosure or the nature of the information a reasonable person would conclude to be confidential. Nonetheless, Confidential Information does not include (i) any information that (1) becomes generally known to the public without breach of any obligation owed to Charmed, (2) was known to You before receipt from Charmed without breach of any obligation (and without a duty of confidentiality) owed to Charmed, (3) is received from a third party without breach of any obligation (and without a duty of confidentiality) owed to Charmed, or (4) was independently developed by Charmed; (ii) any User Content that you send to, or allow to be accessed by, a third party through an Offering; or (iii) any Feedback. Charmed Confidential Information in any event includes the non-public aspects of (y) any Offerings, Charmed Materials and any elements of your Developed Materials using, disclosing or based on use of the Charmed Materials, and any related product plans, technology and other technical information (including the structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of any of the foregoing) and (z) business negotiations.
“Documentation” means any documentation (including online, printed or other documentation) and any technical or legal requirements for an Offering. Documentation includes the Offering Identification.
“End User” means an end user who views, uses or otherwise engages with any of your Projects.
“Entitlements” means any tools, materials, services and rights made available to you by or for Charmed in connection with an Offering and as set forth in the Additional Terms or as otherwise made available to you by Charmed. Entitlements may include technical support, access to updates and upgrades or prior versions, Charmed Materials, training and community content, events, and account tools and information.
“Evaluation Versions” means Offerings (or features of an Offering) labeled or offered as “not for resale,” “evaluation,” “beta,” “experimental,” “alpha,” “pre-release,” “preview package,” “in-development” or any other similar designation.
“Offerings” means Software, Online Services and Entitlements provided by or for Charmed, whether made available for free, as part of a subscription, for a fee or any other basis
“Offering Identification” means any designations by Charmed that reference these Terms and identify the Offering to be provided by Charmed. The Offering Identification may be provided by Charmed as a service confirmation, as part of an online sign-up, subscription, product page or billing flow, or as an addendum, a statement of work or a similar document or communication.
“Online Service” means an online or cloud-based service made available by or for Charmed, whether made available for free, as part of a subscription, for a fee or any other basis.
“Policies” means the policies and guidelines made available by Charmed which may be modified from time to time without notice.
“Project” means all results, applications (including content contained therein), work product, designs, prototypes or other items created or generated by or through any use of any Offering, including any products, parts or services based on or using such results, work product, designs, prototypes or other items. Projects may or may not be User Content.
"Purchase” means, the purchase, subscription to, or activation, in each case related to our Offerings.
“Site” means, collectively, the Charmed websites, including the charmed.ai domains, or other websites related to our offerings.
“Software” means software or similar materials, including any Mobile Apps, modules, components, features and functions, made available by or for Charmed, whether made available for free, as part of a subscription, as an update or upgrade, for a fee or any other basis.
“Terms” means these Terms of Use and the other terms referenced in these Terms of Use, including the Additional Terms and Commercial Terms (if any), together with any other applicable terms.
“Third-Party Materials” means files, designs, meshes, rigs, models, data or data sets, images, documents, objects, elements, audio-visual content, other content, project information, libraries, audio, links, applications and other software, services or other material of a third party, whether or not made available through the Offering.
“Charmed” means Charmed AI, Inc., a Delaware corporation, together with its subsidiaries and other Affiliates.
“Charmed Materials” means any applications programming interfaces, software development kits, tools, libraries, scripts, sample source code and similar developer material made available by Charmed specifically for use with an Offering.
“Usage Data” means data and information regarding, gathered through or otherwise generated from access to and use of any Offerings.
“User Content” means any files, designs, meshes, rigs, models, data or data sets, images, documents, objects, elements, audio-visual, other content, project information, libraries, audio, links, applications and other software, services or other material submitted or uploaded to any Offering by you and the customized, specific output generated for you from the use of any Offering based on the foregoing.
“User Offering Data” means any data and information provided or otherwise made available to Charmed by you or an End User in connection with an Offering or regarding User Content (but not including User Content itself or Usage Data).