PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND CHROMA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Overview. The Site provides information about Chroma and its products and/or services (including its open-source embedding database platform). Access to and use of Chroma’s products and/or services is not the subject of, or governed by, these Terms. The purchase, sale, access to and use of Chroma’s products and/or services is subject to separate terms and conditions and not these Terms.
2. Eligibility. You must be at least 18 years old to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Site or any other service provided by Chroma; and (c) your use of the Site is in compliance with any and all applicable laws and regulations.
a. Limited License. Subject to your complete and ongoing compliance with these Terms, Chroma grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Site.
b. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Site; (b) make modifications to the Site; or (c) interfere with or circumvent any feature of the Site, including any security or access control mechanism. If you are prohibited under applicable law from using the Site, you may not use it.
c. Information You Submit. Do not submit any information or other materials that you consider confidential or proprietary through the Site. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site (“Feedback”), then you do so on a non-confidential basis (regardless of any designation or indication to the contrary in the submitted information or any accompanying correspondence) and you hereby grant Chroma an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free transferable, sublicensable right to exploit the Feedback in any manner and for any purpose, including to improve the Site and create other products and services.
4. Ownership; Proprietary Rights.
4.1 Materials. The Site is owned and operated by Chroma. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Site (“Materials”) provided by Chroma are protected by intellectual property and other laws. All Materials included in the Site are the property of Chroma or its third-party licensors. Except as expressly authorized by Chroma, you may not make use of the Materials. Chroma reserves all rights to the Materials not granted expressly in these Terms.
4.2 Usage Data. Chroma may collect, generate, and derive Usage Data (as defined below) for Chroma’s lawful business purposes, including to: (a) use it to monitor, operate, improve, and support the Site, Chroma’s products and/or services, and their performance, security, and stability; (b) create analytics, benchmarking, and performance data and reports; (c) track usage; and (d) develop new products and services. You will not interfere with the collection of Usage Data. We will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been (a) de-identified so that it does not individually identify you, or (b) aggregated with usage data from other users of the Site and/or Chroma’s products and/or services. As between you and us, Chroma owns all right, title, and interest (including all intellectual property and other proprietary rights in and to) Usage Data, the know-how and analytical results generated in the processing and use of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Site or Chroma’s products and/or services made based on the Usage Data. For purposes of these Terms, “Usage Data” means any performance, analytical, or usage data or information generated or otherwise collected by the Site or by us relating to your access to or use of the Site, Materials, or the User Content.
5. Linked Websites. The Site may contain links to third party websites. Linked websites are not under Chroma’s control, and Chroma is not responsible for their content.
6. User Content
6.1 User Content Generally. Certain features of the Site may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Site, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Site, subject to the licenses granted in these Terms.
6.2 Limited License Grant to Chroma. By Posting User Content to or via the Site, you grant Chroma a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Chroma’s exercise of the license set forth in this Section.
6.3 You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Chroma disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Site. By providing User Content via the Site, you affirm, represent, and warrant to us that:
6.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Chroma may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Site, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Chroma with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Chroma does not permit infringing activities on the Site.
6.5 Monitoring Content. Chroma does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Site by its users. You acknowledge and agree that Chroma reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Site for operational and other purposes. If at any time
7. Prohibited Conduct. BY USING THE SITE, YOU AGREE NOT TO:
8. Intellectual Property Rights Protection
8.1 Respect of Third-Party Rights. Chroma respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Site to do the same. Infringing activity will not be tolerated on or through the Site.
8.2 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Site, you may contact our Designated Agent at the following address:
Attn: Legal Department (IP Notification)
2261 Market Street #4728 San Francisco, CA 94114
8.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
8.4 Repeat Infringers. Chroma’s policy is to: (a) remove or disable access to material that Chroma believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Site; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Site by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. Chroma will terminate the accounts of users that are determined by Chroma to be repeat infringers. Chroma reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
8.5 Counter Notification. If you receive a notification from Chroma that material made available by you on or through the Site has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Chroma with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Chroma’s Designated Agent through one of the methods identified in Section 8.2, and include substantially the following information:
8.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Chroma in response to a Notification of Claimed Infringement, then Chroma will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Chroma will replace the removed User Content or cease disabling access to it in 10 business days, and Chroma will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Chroma’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Chroma’s system or network.
8.7 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of Chroma relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Chroma reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
9. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Except as expressly permitted in this Section 7, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. Modification of the Site. Chroma reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. Chroma will have no liability for any change to the Site or any suspension or termination of your access to or use of the Site.
11. Term. These Terms are effective beginning when you accept the Terms or first access, or use the Site, and ending when terminated as described in this Section 11. If you violate any provision of these Terms, your authorization to access the Site and these Terms automatically terminate. In addition, Chroma may, at its sole discretion, terminate these Terms, or suspend or terminate your access to the Site, at any time for any reason or no reason, with or without notice. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Site; (b) you will no longer be authorized to access the Site; and (c) Sections 3.c, 4, 6, 11, 12, 13, 14, 15, and 16 will survive.
12. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Site, and you will defend and indemnify Chroma and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Chroma Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or covenant referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property or other proprietary right or any right of publicity, confidentiality, or privacy; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of the applicable claims.
13. Disclaimers; No Warranties
13.1 THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CHROMA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CHROMA DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CHROMA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
13.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE, CHROMA ENTITIES, OR ANY MATERIALS OR CONTENT MADE AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE CHROMA ENTITIES, THE SITE, OR ANY SUCH MATERIALS OR CONTENT THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE OR YOUR ACCESS TO OR USE OF THE SITE. YOU UNDERSTAND AND AGREE THAT YOU ACCESS AND USE ANY PORTION OF THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE) OR ANY LOSS OF DATA.
13.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Chroma does not disclaim any warranty or other right that Chroma is prohibited from disclaiming under applicable law.
14. Limitation of Liability
14.1 EXCEPT AS PROVIDED IN SECTIONS 15.5 AND 15.7 AND TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CHROMA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CHROMA ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
14.2 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE CHROMA ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
14.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Dispute Resolution and Arbitration
15.1 Generally. Except as described in Section 15.2 and 15.3, you and Chroma agree that every dispute arising in connection with these Terms, the Site, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CHROMA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
15.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 within 30 days after the date that you agree to these Terms by sending a letter to Chroma Inc., Attention: Legal Department – Arbitration Opt-Out, 2261 Market Street #4728, San Francisco, CA 94114 that specifies: your full legal name, the email address associated with your use of the Site, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Chroma receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved as set forth in Section 16.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
15.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Chroma.
15.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Chroma’s address for Notice is: Chroma Inc., 2261 Market Street #4728, San Francisco, CA 94114. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Chroma may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Chroma will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Chroma has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
15.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Chroma must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
15.7 Arbitration Relief. Except as provided in Section 15.8, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Chroma before an arbitrator was selected, Chroma will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
15.8 No Class Actions. YOU AND CHROMA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Chroma agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.9 Modifications to this Arbitration Provision. If Chroma makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Chroma’s address for Notice of Arbitration, in which case your account with Chroma will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.10 Enforceability. If Section 15.8 or the entirety of this Section 15 is found to be unenforceable, or if Chroma receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 will govern any action arising out of or related to these Terms.
16.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. You and Chroma submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
16.4 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site or that you agree to in connection with certain technology or services made available to you by or on behalf of Chroma (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
16.5 Consent to Electronic Communications. By using the Site, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
16.6 Contact Information. The Site is offered by Chroma Inc., located at 2261 Market Street #4728, San Francisco, CA 94114. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
16.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.
16.8 No Support. We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.
16.9 International Use. The Site is intended for visitors located within the United States. We make no representation that the Site is appropriate or available for use outside of the United States. Access to the Site from countries or territories or by individuals where such access is illegal is prohibited.