Effective Date: July 22, 2020
CHARMA, INC.
TERMS OF USE
These TERMS OF USE (this “Agreement”) is made and entered into by and between WorkPatterns, Inc. dba Charma, a Delaware corporation (”Licensor”, “Charma” or “we”, “us”, or “our”), and you (“Licensee” or “you” or “your”). This Agreement sets forth the terms and conditions for the use of the App (defined below) by users designated by you (“Authorized Users”). BY ACCEPTING THE AGREEMENT IN ACCORDANCE WITH THE INSTRUCTIONS ON OUR WEBSITE, YOU REPRESENT TO US THAT YOU HAVE THE AUTHORITY TO ENTER THIS AGREEMENT AND THAT YOU HAVE READ AND FULLY UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT. You don't have authority to enter this Agreement if you are not old enough to enter contracts.
1. App Definition. The term “App” shall mean Charma’s proprietary data driven communication and collaboration application.
2. Subscriptions. We may from time to time offer free or paid subscriptions of the App, on terms and conditions set forth below in this Agreement.
3. Limited License.
(a) Grant of License. Charma grants you a royalty-free, nonexclusive, nontransferable, revocable license for Authorized Users to access and use the hosted App (without any right to sublicense), subject to all terms and conditions set forth in this Agreement.
(b) License Restrictions. You may not permit any third party, except Authorized Users, to access or use the App. Authorized Users are limited in number to the number of end user subscriptions allowed under your subscription, as specified to you when you purchased or otherwise accepted your subscription. You may designate Authorized Users by providing us with the name and a separate email address for each Authorized User.You shall be responsible for ensuring that each Authorized User remains fully compliant with this Agreement. Any breach by an Authorized User of this Agreement shall constitute a breach by you under this Agreement.
(c) Term of License. Your subscription will have a monthly, annual or other subscription period as specified by us to you at time of purchase or acceptance. Each subscription will automatically renew at the end of each subscription period, at the then-current Fees (if a paid subscription), unless cancelled as described below. If cancelled, the subscription ends at the end of the current subscription period.
(d) Subscription Fees. If you have a paid subscription, you agree to be responsible for payment of the subscription fees (“Fees”) as quoted at the time of purchase, and all applicable taxes. We may calculate taxes payable by you based on the billing information provided to us at the time of purchase. All payments made are non-refundable and non-transferable, except as expressly provided in this Agreement. You (or the applicable Authorized User) are also responsible for all additional charges incurred in order to subscribe to and access the App, such as telephone, internet or data charges, and bank or other financial service provider charges. We reserve the right to change our pricing terms at any time. If we do so, we will let you know by posting the new pricing terms on the App or through other communications. Changes to the pricing terms will not apply retroactively and will only apply to subscription renewals after the changed pricing terms have been communicated as described above. If you do not agree to the changed pricing terms, then you may choose to cancel the subscription as described below. We also reserve the right to change other terms of our subscription plans at any time, including changing the features that can be accessed through a particular plan.
(e) Payment of Fees. To purchase a paid subscription, you must provide us with current, complete, accurate and authorized credit card or other approved payment method information. You agree to promptly notify us of any changes to the provided payment method while your subscription remains outstanding. You authorize us to charge the provided payment method for the selected subscription. We will charge you for the initial subscription period at the time of purchase or shortly after purchase. We will charge you for renewal periods on a recurring basis, at the beginning of each renewal subscription period, until such time that you cancel. You understand that failure to pay any subscription fees or other charges may result in the suspension or cancellation of your subscription.(
f) Termination. Each subscription will automatically renew at the end of each subscription period unless cancelled at least thirty (30) days prior to the end of that period. Refunds cannot be claimed for any partial subscription period. To cancel a subscription, please contact customer service by email at support@charma.com, or by any other cancellation method made available on the App. If you have a free subscription, we may terminate your subscription at any time by providing five (5) business days’ prior written notice to you stating the effective date of the termination. Regardless of whether you have a free or paid subscription, if you or an Authorized User violates any provision of this Agreement, we may terminate your subscription immediately upon written notice.
(g) Survival of Terms. The provisions of Sections 3(g), 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16,17 and 18 will survive any termination or expiration of this Agreement.
4. Feedback.
(a) Feedback. We welcome your comments, input and suggestions regarding your use of, problems with, or recommendations for improvements to the App (“Feedback”). You can submit Feedback by emailing us at support@charma.com . We may also from time to time solicit Feedback from you. You grant us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to change, modify, correct or improve the App and to create other products and services.
(b) Test Plans. If you have a free subscription, you agree to use and evaluate the App and provide Feedback in accordance with such testing plans and procedures as we may from time to time provide to you, via e-mail or otherwise. Such test plans may include, without limitation, our terms of support, and reporting forms and schedules for reporting use. You agree to provide us with Feedback in the form of periodic data and reports that include but are not limited to (i) a description of the results of your use and evaluation of the App, including any defects found in the App and any information necessary for us to evaluate such defects, and (ii) any recommendations by you for changes or modifications to the App.
5. CCPA Compliance. To the extent we act as a “service provider” of you as a “business” pursuant to the California Consumer Privacy Act ("CCPA"), we will not retain, use, or disclose the personal information of California residents for any purpose other than for the specific purpose of performing our obligations specified hereunder, except as otherwise permitted by the CCPA and its implementing regulations. Unless otherwise provided herein, if we receive a request for information or a request to delete information directly from a California resident regarding personal information that we collect, maintain or sell or behalf of you, we will: (1) notify you of the request; (2) advise the California resident that in accordance with this contract, you shall respond to such requests; (3) inform the California resident to submit the request directly to you; and (4) provide your contact information to the California resident. If you direct us to delete a California resident's personal information, we will delete the personal information except as otherwise authorized by the CCPA. By way of example, the CCPA allows for the maintenance of personal information despite a request to delete in order to detect security incidents, protect against malicious, deceptive, fraudulent, or illegal activity; to repair errors that impair existing intended functionality; and to comply with legal obligations.
6. Data Rights. You agree that, except as otherwise provided in this Section 6 or in Section 7, we shall have the right to use, in any manner and for any purpose, any data and information submitted by you or Authorized Users to us, or collected by us from you or Authorized Users, directly as a result of your and Authorized Users’ use of the App or indirectly through the Third Party Services (“Customer Data”). We may use Customer Data to support our legitimate interests in maintaining and improving the App, in marketing and advertising the App, and for other purposes described in our privacy policy. We will not sell such Customer Data to third parties. We will not share Customer Data with third parties except (a) with our service providers who use it for such limited purposes as specified in our agreements with them, (b) in aggregate or masked form that cannot be linked or associated back to you or Authorized Users, (c) for legal compliance purposes, or (d) for such other limited purposes as are described in our privacy policy.
7. Publicity. We shall have the right to use your name and logo on our website and in marketing and promotional materials in order to identify you as one of our customers.
8. No Obligation to Support App; App Availability. Except as expressly set forth in this Agreement, we shall have no obligation to correct any bugs, defects or errors in the App or to otherwise support or maintain the App. We will use commercially reasonable efforts to make the App continuously available, excluding scheduled maintenance and unscheduled emergency maintenance; provided, however, that we cannot guarantee that the App will operate in an uninterrupted or error-free manner.
9. Ownership of App. You agree that we own all rights, title and interest, including but not limited to copyright, patent, trade secret, and all other intellectual property rights, in the App and any changes, modifications or corrections to the App made by us. If you are ever held or deemed to be the owner of any copyright or other intellectual property rights in the App or any changes, modifications or corrections to the App made by us, then you hereby irrevocably assign to us all such rights, title and interest and agree to execute all documents necessary to implement and confirm the letter and intent of this Section.
10. Confidentiality.(a) Acknowledgment of Trade Secrets. You acknowledge that the App contains valuable trade secrets and confidential information owned by us, including but not limited to the development status of the App, the functionality of the App, the appearance, content and flow of the App’s user interface, and the content of the App’s documentation.(b) Restrictions. You agree that you and your Authorized Users will not, directly or indirectly, (i) sell, lease, assign, sublicense or otherwise transfer, (ii) duplicate, reproduce or copy (except to make one backup copy), (iii) disclose, divulge or otherwise make available to any third party, (iv) use except as authorized by this Agreement, or (v) decompile, disassemble or otherwise analyze for reverse engineering purposes, the App, including all trade secrets and confidential information therein. You shall take all reasonable precautions to prevent inadvertent disclosure of the App, including all trade secrets and confidential information therein.(c) No Disclosure to Third Parties. You will not permit any third party, nor any employee, representative or agent thereof, that develops, markets or licenses computer programs with functionality similar to the functionality of the App to have access to the App or to any trade secrets and confidential information therein.
11. Warranties and Limitations.
(a) Warranties of By Each Party. Each party represents and warrants to the other party that:
(i) such party has full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder;
(ii) the acceptance of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound;
(iii) when accepted by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and(iv) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.
(b) Performance Warranty. If you are a paid subscriber, we warrant to you that (a) the App as delivered to Authorized Users will conform in all material respects with its description and be of reasonably satisfactory quality; (b) we will use reasonable skill and care in making the App available to Authorized Users during your subscription; and (c) we will use reasonable endeavors to remedy any defects in the App.(c) Acknowledgment by Licensee; Disclaimer of Other Warranties. Except as expressly provided in Section 11(b), (1) you agree that the App is provided “AS IS” and that we make no other warranty as to the App; (2) you acknowledge and agree that: (i) the App may contain errors, design flaws or other problems; (ii) the App may not function fully or adequately; and (iii) use of the App may result in unexpected results, loss of data, project delays or other unpredictable damage or loss to you or Authorized Users; and (3) WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE APP, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT.
12. Limitation of Liability. In no event shall we be liable for any consequential, special, exemplary, incidental or indirect damages arising out of or in connection with this Agreement or the use, the results of use, or the inability to use the App, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, even if we have been advised of the possibility of such damages. Our aggregate liability to you party for all claims arising out of or relating to the access or use of or any inability to access or use the App, or otherwise arising out of or relating to this Agreement, whether in contract, tort, indemnity, or otherwise, is limited to the amount paid by you for access to and use of the App in the twelve (12) months prior to the events or circumstances giving rise to claim. You agree that you shall have the sole responsibility for protecting your data, by periodic backup or otherwise, used in connection with the App.
13. Indemnification.(a) We shall defend, at our expense, any claim, lawsuit or related action brought against you alleging that your use of the App in accordance with this Agreement infringes a United States patent or copyright, and shall pay all costs and damages finally awarded in any such action (and reasonable attorneys’ fees incurred in such action), provided that we are given prompt written notice of such claim, any information in the possession of you related to such claim, reasonable assistance by you and sole authority to settle or defend such claim. Notwithstanding the foregoing, we shall not have any liability or obligations under this Section 13 to the extent that the alleged infringement is based upon the use of the App in combination with any other computer programs or technology not licensed by us to you.
(b) You shall defend, at your expense, any claim, lawsuit or related action brought against us and relating to or in any way connected with your violation of this Agreement, and shall pay all costs and damages finally awarded in any such action (and reasonable attorneys’ fees incurred in such action), provided that you are given prompt written notice of such claim, any information in the possession of us related to such claim, reasonable assistance by us and sole authority to settle or defend such claim.
14. No Assignment. Neither party may assign or otherwise transfer in any way any of the rights and obligations arising out of this Agreement without the prior written consent of the other party (except that we may transfer this agreement to any successor in connection with any transfer of all or substantially all of our assets or any party that acquires voting control of us in any merger, acquisition or reorganization).
15. U.S. Government Licensees. The App is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government Licensees acquire only those rights in the App that are provided in this Agreement.
16. Compliance with Law; Noninfringing Use. You will use, and will ensure that your Authorized Users use, the App only in compliance with all applicable laws and regulations. You will not, and will ensure that your Authorized Users do not, use the App in a manner that infringes or misappropriates the intellectual property rights or violates the privacy rights of any third party. You are solely responsible for content that you and your Authorized Users upload or otherwise provide to the App and the consequences of providing such content. Although we have no obligation to monitor your use of the App, we may do so and may prohibit any use of the App we reasonably conclude is in violation of this Agreement or any applicable law or regulation.
17. Third Party Services. The App may enable linking with one or more online third-party communication services, such as email, calendaring, phone, VOIP, CRM and chat services (“Third-Party Services”). Your right to use such Third Party Services is governed by the terms and conditions established by each Third Party Services provider with you, and you warrant and represent that (a) you will comply with all such terms and conditions and (b) you will maintain all necessary rights to permit the App to link with such Third Party Services. You are responsible for paying all fees charged by your Third Party Service providers.
18. Other Provisions.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the parties. Any amendment or waiver effected in accordance with this Section 18(a) shall be binding upon the parties and their respective successors and assigns.
(b) Successors and Assigns. Subject to the provisions of Section 14, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
(c) Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
(d) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient (i) upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, (ii) one (1) day after e-mail transmission via Internet (with a copy by first-class certified or registered mail, postage prepaid on the first business day after transmission) or (iii) forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, provided in each case that such notice is addressed to the party to be notified at such party’s address, facsimile number or e-mail address as set forth below, or as subsequently modified by written notice.
(e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.
(g) Independent Contractor. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
(h) Arbitration. Any dispute or claim arising out of or in connection with this Agreement, except for a dispute or claim arising from the provisions of Section 7 (Ownership of App) or 8 (Confidentiality) above, will be finally settled by binding arbitration in the State of California in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules. The arbitrator shall apply California law, without reference to rules of conflicts of law or rules of statutory arbitration, to the resolution of any dispute. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision.
(i) Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
If you have any questions or concerns regarding privacy on our Sites, please send us a detailed message at support@charma.com or at the address below. We will make every effort to resolve your concerns.
C/O Charma, 4112 Del Rey Ave, Marina Del Rey, CA 90292
