Last Updated: October 2, 2024
This Terms of Service (“Agreement”) is a legally binding contract between you and Chroma Inc. (“Chroma,” “us,” “we,” or “our”) regarding your use of the Service (as defined in Section 1). References to “Customer”, “you”, and “your” refer to the individual, company, or other entity that accepts the Agreement, by executing an ordering document provided to you by us or using online functionality Chroma makes available like clicking a box, creating an Account (as defined in Section 3.3), or otherwise affirmatively accepting the Agreement through another means Chroma offers you. If the Service is being used on behalf of a company or other entity by an individual authorized to accept this Agreement on your behalf, then all references to “Customer,” “you,” or “your” refer to the company or other entity. If you are a company or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. If you are accepting this Agreement on behalf of a company or other entity and an authorized representative of the entity has already accepted this Agreement on behalf of the entity or entered into a separate agreement regarding the use of the Service (“Separate Agreement”) prior to the date upon which you accept this Agreement (“Effective Date”), this Agreement will not apply to you, and the entity's rights and obligations with respect to the Service will at all times be governed by, and subject to, the Separate Agreement. If you are not eligible, or do not agree to the terms and conditions of this Agreement, then you do not have our permission to use the Service. Your use of and our provision of the Service to you, constitutes an Agreement by Chroma and by you to be bound by this Agreement.
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF CHROMA AT THE PHONE NUMBER YOU PROVIDE TO CHROMA. THESE TEXTS/CALLS MAY INCLUDE OPERATIONAL MESSAGES ABOUT YOUR USE OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 13.2, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND CHROMA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Certain capitalized terms used in this Agreement are defined in Section 14 (Definitions) and others are defined contextually in this Agreement.
The Service provides features and functionalities in connection with an embedding database that can be used with large language model applications (“Service”). The Service includes the Chroma application programming interface made available by Chroma under this Agreement (“API”).
Service.
Subject to the terms and conditions of this Agreement, Chroma will make the Service available to Customer and, if Customer is a company or entity, to Customer's Users during the Term, solely for purposes of facilitating the interoperation and interconnection of the Application with the Service. Customer may only use the Service for Customer's internal business purposes.
SDK.
In order to use the Service, you may need to download, install, and use the Chroma software development kit (“SDK”) (available at https://github.com/chroma-core/chroma). Your and our rights and obligations in connection with the SDK are governed by the terms and conditions of the license that it is distributed with, and not this Agreement.
Access.
To access the Service, Customer and its Users must register for an account (“Account”) and, in doing so, may be required to provide Chroma with information (such name, email address, or other contact information). You agree that the information you provide to Chroma is accurate, complete, and not misleading and that you will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by Chroma (“Log-in Credentials”), may access and use the Service. Each User must keep their Log-in Credentials confidential and not share them with anyone else. Customer is responsible for Users' compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Chroma's breach of this Agreement). Customer will promptly notify Chroma if Customer becomes aware of any compromise of any Log-in Credentials. Chroma may Process Log-in Credentials in connection with Chroma's provision of the Service or for Chroma's internal business purposes. Customer represents and warrants to Chroma that: (a) Customer has not previously been suspended or removed from the Service; and (b) Customer's registration and use of the Service is in compliance with all Laws.
Restrictions.
Customer will not (and will not permit Users or anyone else to) do any of the following: (a) provide access to, expose, distribute, sell, or sublicense the Service to a third party (other than Users); (b) use the Service to develop a similar or competing product or service; (c) reverse engineer, decompile, disassemble, or seek to access the source code or API to the Service, except to the extent expressly permitted by Law (and then only with prior notice to Chroma); (d) modify or create derivative works of the Service or copy any element of the Service (other than authorized copies of the SDK); (e) remove or obscure any proprietary notices in the Service; (f) publish benchmarks or performance information about the Service; (g) interfere with the operation of the Service, circumvent any access restrictions, or conduct any security or vulnerability test of the Service; (h) transmit any viruses or other harmful materials to the Service; (i) take any action that risks harm to others or to the security, availability, or integrity of the Service; (j) access or use the Service in a manner that violates any Law; (k) use the Service with Prohibited Data or for High Risk Activities; or (l) implement the API in any software other than in connection with the Application or to support any interfaces between computing devices or computing functions other than as expressly required to facilitate the interoperation and interconnection of the Service with the Application. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Chroma is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Chroma has no liability for Prohibited Data or use of the Service for High Risk Activities.
Support.
Please contact Chroma at hello@trychroma.com if you experience any issue with respect to the Service. Chroma is under no obligation to respond to or to resolve all or any issue reported to us or to provide any updates, upgrades, or other technical or maintenance support to Customer or any Users with respect to the Service.
Use of Customer Data.
Customer grants Chroma the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data to: (a) provide the Service in accordance with these Terms and our Privacy Policy; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties. In the event that Chroma accepts any such request by Customer: (a) the license grant set forth in this Section will include the right to host Customer Data; and (b) Chroma will implement and maintain commercially reasonable physical, technical, organizational, and administrative security measures and procedures that are designed to protect such hosted Customer Data against unauthorized access, use, modification, deletion, or disclosure. Unless expressly permitted by Customer, Chroma will not use Customer Data to train the artificial intelligence or machine learning models. For the avoidance of doubt, by using the Service, you acknowledge and agree that we may process Customer Data as set forth in our Privacy Policy.
Usage Data; Aggregated Data.
Chroma may Process Usage Data and Aggregated Data for internal business purposes to: (a) track use of Service for billing purposes; (b) provide support for Service; (c) monitor the performance and stability of the Service; (d) prevent or address technical issues with the Service; (e) improve Service, our other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
Customer Obligations.
Customer is responsible for Customer Data, including its content and accuracy, and will comply with Laws and the Documentation when using the Service. You represent and warrant that you have made all disclosures, provided all notices, and obtained all rights, consents, and permissions necessary for Chroma to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process the Customer Data as set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.
Suspension.
Chroma may immediately suspend Customer's and Users' access to the Service if: (a) Customer breaches Section 3.4 (Restrictions) or Section 3.8 (Customer Obligations); (b) Customer's Account is 30 days or more overdue; (c) changes to Laws or new Laws require that Chroma suspend the Service; or (d) Customer's or Users' actions risk harm to any of Chroma's other customers or the security, availability, or integrity of the Service. Where practicable, Chroma will use reasonable efforts to provide Customer with prior notice of the suspension. If the issue that led to the suspension is resolved, Chroma will use reasonable efforts to restore your access to the Service.
Modifications to the Service.
Chroma may modify or discontinue all or any part of the Service at any time (including by limiting or discontinuing certain features or functionality of the Service), temporarily or permanently, without notifying Customer (except that Chroma will use commercially reasonable efforts provide Customer with 30 days' prior notice in the event of any deprecation of any material feature or functionality of the Service). Chroma will have no liability for any change or modification to the Service or any suspension or termination of access to or use of the Service as a result thereof. Notwithstanding the foregoing, any such change or modification will only apply on a going-forward basis.
Customer Systems.
Customer will provide and maintain any hardware, software, other technology, and infrastructure that Customer require to access and use the Service including any hardware device on which the SDK or the Application can be installed and used as defined in the current version of Chroma's usage guidelines and Documentation. Customer will be solely liable for implementing, securing, and maintaining such technology, and Chroma will not be liable to Customer for any failure or non-fulfillment of Customer to do so.
Third-Party Platforms.
Use of Third-Party Platforms are subject to Customer's agreements with the relevant provider and not this Agreement. Chroma does not control and have no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Service or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Service, Customer authorizes Chroma to access and exchange Customer Data with such Third-Party Platform on Customer's behalf.
Applications.
Customer will ensure: (a) the Application does not directly or indirectly adversely affect, impede, or otherwise hinder or disrupt the functionality, stability, security, operation, or performance of the Service, the technology used by Chroma to provide or otherwise make available the Service, or any other applications using the Service; (b) the Application correctly identifies itself to the Service when requesting authorization; (c) the Application does not attempt to modify the Service in any way; (d) the Application (including its use, access, operation, maintenance, sale, offering for sale, and marketing thereof) complies with all Laws in each jurisdiction with legal authority, regulatory oversight, or supervision over the Application; and (e) that it will not subject any portion of the Service or any Chroma intellectual property right in any portion of the Service to the terms of any “open source” license, including a license that requires, as a condition of use, modification, or distribution of technology subject to such license, that such technology or other technology combined or distributed with such technology (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making derivative works, or (3) be redistributable at no charge.
Open Source.
The Service may be distributed or used with certain third-party open source software (“OSS”), as listed in the Documentation or as specified by Chroma upon prior written request by Customer. Any use of OSS on a stand-alone basis will be subject to the terms of the applicable OSS license and not this Agreement.
General Payment Terms.
The Service is currently provided free of charge, but Chroma reserves the right to determine pricing for the Service. Certain features of the Service may require you to pay fees based on your use of the Service. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees and other expenses are non-refundable and non-cancellable. You are responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to any purchase by you in connection with the Service, whether domestic or foreign, other than Chroma's income tax (“Taxes”). Fees are exclusive of all Taxes. All fees will be due within 30 days of the invoice date. Your Account will be charged a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less and Customer will also be responsible for fees or charges that are incidental to any chargeback or collection of any the unpaid amount including any collection fees. Chroma will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. Chroma may change the fees for any feature of the Service, including additional fees or charges, on a going forward basis if Chroma gives you advance notice of changes before they apply. Chroma, in our sole discretion, may make promotional offers with different features and different pricing to any of Chroma's customers. These promotional offers, unless made to you, will not apply to your offer or this Agreement.
Authorization.
You authorize Chroma to charge all amounts owed by you, including all applicable Taxes, to the payment method specified in your Account. If you pay any fees with a credit card, then Chroma may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Delinquent Accounts.
Chroma may suspend or terminate access to the Service, including fee-based portions of the Service, for any Account for which any amount is due but unpaid. In addition to the amounts due for the Service, a delinquent Account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time payment is due, then Chroma reserves the right to delete your Account and any information associated with your Account without any liability to you.
Limited Warranty.
Chroma warrants to Customer that the Service will perform materially as described in the Documentation during the 30 day period following the Effective Date (“Limited Warranty”).
Disclaimer.
EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.1, THE SERVICE IS PROVIDED “AS IS”. CHROMA, ON OUR OWN BEHALF AND ON BEHALF OF OUR SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CHROMA WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. CHROMA IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE CHROMA'S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.
Warranty Remedy.
If Chroma breaches a Limited Warranty during the 30 day period following the Effective Date and Customer makes a reasonably detailed warranty claim in the manner required by Chroma within such 30 day period, then Chroma will use reasonable efforts to correct the non-conformity. If Chroma cannot do so within 30 days of receipt of Customer's warranty claim, either party may terminate this Agreement. This Section 5.3 sets forth Customer's exclusive remedy and Chroma's entire liability for breach of the Limited Warranty. This warranty does not apply to: (a) issues caused by Customer's or Users' misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.
Term.
This Agreement starts on the Effective Date and continues until expiration or termination in accordance with Section 6.2 (the “Term”).
Termination.
Either party may terminate this Agreement if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Customer violates any provision of this Agreement, then your authorization to access the Service and this Agreement automatically terminates. In addition, Chroma may, in our sole discretion, terminate this Agreement or Customer's Account on the Service, or suspend or terminate Customer's access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to Customer arising from such termination. You may terminate your Account and this Agreement at any time by following the procedures described on or through the Service.
Effect of Termination.
Upon termination of this Agreement, Customer's access to and Chroma's obligations to provide the Service will cease. During the Term and for the 30-day period immediately following the date of earlier termination of the Term, Customer may request a copy of its Customer Data, including from Third-Party Platforms, and Chroma will provide Customer such copy in an industry standard, electronic format (subject to Customer's payment of any mutually agreed upon fees to be paid to Chroma for such copy). After that 30 day period, Chroma will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in our sole discretion. Customer Data and other Confidential Information, as defined in Section 10, may be retained in Recipient's standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement's confidentiality restrictions.
Survival.
These Sections survive expiration or termination of this Agreement: 3.4 (Restrictions), 3.7 (Usage Data; Aggregated Data), 3.8 (Customer Obligations), 4 (Commercial Terms), 5.2 (Disclaimer), 6.3 (Effect of Termination), 6.4 (Survival), 7 (Ownership), 8 (Limitations of Liability), 9 (Indemnification), 10 (Confidentiality), 13 (Miscellaneous), and 14 (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data. Except for Customer's use rights in this Agreement, Chroma and our licensors retain all intellectual property rights and other rights in the Service, Documentation, Aggregated Data, Usage Data, and Chroma's technology, templates, formats, and dashboards, including any modifications or improvements to these items made by us. If Customer provides Chroma with feedback or suggestions regarding the Service or our other offerings, Chroma may use the feedback or suggestions without restriction or obligation.
Except for breaches of Sections 3.1 (Permitted Use), 3.4 (Restrictions) and 10 (Confidentiality), neither Chroma's, Customer's or their respective suppliers or licensors will have liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance. Except for breaches of Sections 3.1 (Permitted Use), 3.4 (Restrictions) and 10 (Confidentiality) and liability arising out of Section 9 (Indemnification), neither Chroma's, Customer's or their respective suppliers' or licensors' liability arising out of or related to this Agreement will exceed in aggregate the greater of: (a) the amounts paid or payable by Customer to Chroma pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement; or (b) $1,000.00 (USD). The waivers and limitations in this Section 8 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
Customer will defend Chroma, its affiliates, and their respective directors, officers, employers, agents, successors and assigns (collectively “Chroma Parties”) from and against any third-party claim to the extent resulting from (a) Customer Data, (b) the Application, (c) Customer's or its Users' violations of Law, fraud, gross negligence, or willful misconduct, or (d) Customer's or its Users' breach or non-fulfillment of any representation, warranty, or covenant in this Agreement, and Customer will indemnify and hold the Chroma Parties harmless against any damages and costs awarded against the Chroma Parties (including reasonable attorneys' fees) or agreed in a settlement by Customer resulting from the claim.
Definition.
“Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is marked by the disclosing party (“Discloser”) as proprietary or confidential or, if disclosed orally, is designated as proprietary or confidential at the time of disclosure. Our Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service.
Obligations.
As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 3.6 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser's request, Recipient will delete all Confidential Information, except, in the case where Chroma is the Recipient, Chroma may retain the Customer's Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that Recipient remains responsible for their compliance with this Section 10 and they are bound to confidentiality obligations no less protective than this Section 10.
Exclusions.
These confidentiality obligations do not apply to information that Recipient can show: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without relying on Confidential Information.
Remedies.
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 10.
Required Disclosures.
Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
If Customer or Users receive access to or use of Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), such access to or use is permitted only for Customer's internal evaluation and testing purposes during the period designated by Chroma (not to exceed thirty 30 days unless otherwise agreed upon by the parties in writing). These Trials and Betas will be considered part of the Service and, subject to the remainder of this Section 11, all provisions of this Agreement relating to the Service will apply to these Trials and Betas. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Chroma may never release, and their features and performance information are deemed to be Chroma's Confidential Information. Chroma may suspend Customer's and Users' access to the Trials and Betas at any time. Customer's and Users' use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CHROMA PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND OUR LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US $50.00.
We may, from time to time, modify this Agreement. Please check this Agreement periodically for changes. Revisions will be effective immediately except that, for existing customers and their Users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept a modified Agreement in order to continue to use the Service. If Customer objects to any such modification, Customer's exclusive remedy is to terminate this Agreement with notice to Chroma. To exercise this termination right, you must notify Chroma of your objections within 30 days after Chroma's notice of the modified Agreement. Once the modified Agreement takes effect, your continued use of the Service constitutes your acceptance of the modifications. Chroma may require Customer to click to accept the modified Agreement.
General Provisions.
This Agreement, including the Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between Customer and Chroma regarding your use of the Service. Customer may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without Chroma's prior written consent. Chroma may assign this Agreement and all rights granted under this Agreement, including with respect to your Customer Data, at any time without notice or consent. The failure to require performance of any provision will not affect Chroma's right to require performance at any other time after that, nor will a waiver by Chroma of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, pandemic, epidemic, health emergency, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
Arbitration.
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.
Generally.
Except as described in Section 13.2(b) and Section 13.2(c), you and Chroma agree that every dispute arising in connection with this Agreement 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 this Agreement. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
Exceptions.
Although we are agreeing to arbitrate most disputes between us, nothing in this Agreement 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.
Opt-Out.
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 13.2 within 30 days after the date that you agree to this Agreement 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 Account, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Chroma receives your Opt-Out Notice, this Section 13.2 will be void and any action arising out of this Agreement will be resolved as set forth in Section 13.3. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.
Arbitrator.
This arbitration agreement, and any arbitration between us, is subject to 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 this Agreement. 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.
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 this Agreement, 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.
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. If you are a company or other entity, in-person hearings for the arbitration will be conducted in San Francisco County, California. 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.
Arbitration Relief.
Except as provided in Section 13.2(h), 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 Laws 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.
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.
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.
Enforceability.
If Section 13.2(h), or the entirety of this Section 13.2 is found to be unenforceable, or if Chroma receives an Opt-Out Notice from you, then the entirety of this Section 13.2 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 13.3 will govern any action arising out of or related to this Agreement.
Governing Law.
This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco County, California and both parties submit to the personal jurisdiction of those courts.
Additional Terms.
Customer's use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that Chroma may post on or link to from the Service (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
Use of Customer's Name and Marks.
Customer grants to Chroma the limited, non-exclusive, transferable, royalty-free, fully paid-up, worldwide license and right, during the term of this Agreement, to use Customer's name, logo, trademarks, and other branding elements (“Customer Marks”) as part of Chroma's customer lists, marketing materials, or otherwise in the promotion of Chroma's business, products, and services, in each case, in accordance with any written branding guidelines or requirements provided by Customer to Chroma. Customer may require that Chroma cease further use of Customer Marks upon written notice to Chroma (except that Chroma will not be obligated to cease its use of any tangible materials containing, embodying, or including Customer Marks that are in existence at the time of Chroma's receipt of such notice from Customer).
Consent to Electronic Communications.
You agree that Chroma and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational and marketing calls or messages about your use of the Service. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM CHROMA, YOU CAN EMAIL hello@trychroma.com OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM CHROMA, YOU CAN EMAIL hello@trychroma.com OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Service. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. By using the Service, Customer consents to receiving certain electronic communications from Chroma as further described in Chroma's Privacy Policy. Please read Chroma's Privacy Policy to learn more about Chroma's electronic communications practices. Customer agree that any notices, agreements, disclosures, or other communications that Chroma sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
Anti-Corruption.
Customer and its representatives (including but not limited to its officers, principals, directors, employees, agents, members, trustees, affiliates, subcontractors, and any other representatives and persons acting on its or their behalf) (collectively, “Customer Representatives”) have conducted and will continue at all times to conduct their business in an ethical manner and in compliance with all applicable anti-bribery and anti-corruption laws (“ABAC Laws”) and trade laws. Upon becoming aware of any actual or alleged violation of the provisions set forth in this Section or of any ABAC Laws or trade laws in connection with this Agreement, Customer will immediately notify Chroma in writing.
Sanctions.
By entering into this Agreement, Customer represents and warrants that the Customer Representatives are: (a) not subject to any applicable sanctions including those administered by the Office of Foreign Assets Control of the US Treasury Department (“OFAC”), the United Nations Security Council, the European Union, the United Kingdom or other relevant sanctions authority (collectively “Denied Parties”); (b) owned or controlled by Denied Parties; or (c) located, organized or resident in a country or territory that is the subject of OFAC comprehensive sanctions or other applicable sanctions or embargoes. For convenience, as of the Effective Date, OFAC has targeted the following countries and territories for comprehensive sanctions: Iran, Syria, North Korea, Cuba, and the territory of Crimea. Customer will immediately notify Chroma in writing in the event that any of the Customer Representatives do not satisfy the representations or warranties set forth in this Section and will immediately prohibit them from performing obligations or exercising rights on behalf of Customer under this Agreement.
Export Control.
Each party will comply with all relevant U.S. export and re‐export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce. Unless a party has prior authorization, at no time will such party directly or indirectly, export, re‐export, sell, transfer, divert, or otherwise dispose of any products, software or technology (including products derived from or based on such technology or incorporating such products and software), documents or materials received from the other party under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
Contact Information.
The Service is offered by Chroma Inc., located at 2261 Market Street #4728, San Francisco, CA 94114. Customer may contact Chroma by sending correspondence to that address or by emailing Chroma at hello@trychroma.com.
Notice to California Residents.
If Customer are a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
“Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
“Application” means a hosted, mobile, or downloadable application operated and maintained by Customer that interoperates and interconnects with the Service.
“Customer Data” means any data or information that: (a) Customer (including Users) submits to the Service, including from Third-Party Platforms; and (b) is collected, accessed, used, disclosed, transferred, transmitted, stored, hosted, or otherwise processed by Chroma to provide the Service to Customer.
“Customer Systems” means Customer's hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Service.
“Documentation” means the then-current version of Chroma's usage guidelines and standard technical documentation for the Service that Chroma makes generally available to its customers that it provides the Service to, the current version of which are available at docs.trychroma.com/.
“High Risk Activities” means activities where use or failure of the Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
“Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data, including personal data.
“Privacy Policy” means the Privacy Policy (available at www.trychroma.com/platform-privacy).
“Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
“Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (d) other information subject to regulation or protection under specific Laws such as the Children's Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver's license numbers, or other government ID numbers; or (f) any data similar to the above that are protected under applicable Laws.
“Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Chroma that Customer elects to integrate or enable for use with the Service.
“Usage Data” means information generated from the use of the Service, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer's use of the Service, but excluding any identifiable Customer Data.
“User” means any employee or contractor of Customer that Customer allows to use the Service on Customer's behalf.