This license agreement is entered into and made effective as of the Effective Date (as defined in Section 1) between Purple Squirrel Media LLC, a Delaware limited liability company ("PSM"), and Customer (as defined in Section 1 below). This license agreement together with the DPA, the Credit Terms (as applicable), all Order Forms and all Documentation, which are incorporated herein by this reference, constitute the "Agreement". PSM and the Customer each are a "Party" and collectively the "Parties".
The Parties hereby agree as follows:
All capitalized terms not otherwise defined herein have the meaning set forth below:
"Acceptable Use Policy" means PSM's policy available at purplesquirrelmedia.io/legal/acceptable-use, as may be updated from time to time.
"Affiliates" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity; for purposes of this definition, "control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"API" means application programming interface.
"API Key" or "API Keys" means the unique authentication credentials (including keys, tokens, or similar identifiers) generated by or issued to Customer through the PSM Model platform or console that enable Customer and its Authorized Customer Users to access and use the PSM Model via the API. Customer is responsible for maintaining the confidentiality and security of all API Keys and for all activities that occur using such API Keys.
"Authorized Customer Users" has the meaning stated in Section 3.1.
"Commercial Plan" means a plan under which Customer commits to a Minimum Annual Commitment and receives Credits based on the Fees paid, as further detailed in an Order Form.
"Credits" means the prepaid usage units purchased by Customer that can be used to access the PSM Model via API calls, where each Credit corresponds to one U.S. Dollar ($1.00) in value and is consumed based on the then-current Pricing applicable to each API call.
"Credit Balance" means the total amount of unused Credits available in Customer's Account at any given time.
"Customer" means the person, the business or other legal entity that enters into this Agreement with PSM.
"Customer's Account" means Customer's account with PSM.
"Customer Data" means (a) Input, (b) Output, and (c) any other information or data Customer makes available to PSM.
"Customer's Service" means Customer's product or service as designated in the Order Form.
"Documentation" means any specifications, manuals, documentation, and other written information and policies, including the Acceptable Use Policy and the Credit Terms (as may be amended by PSM from time to time), provided by PSM, including on its webpage, in connection with the PSM Model.
"DPA" means the data protection agreement entered into between the Parties.
"Effective Date" means, as applicable: (a) in the case of Enterprise Customers, the date of the last signature in the signature page of the first Order Form executed by such Customer; and (b) in the case of Self-Serve Customers, the earlier of the date such Customer accepts this Agreement.
"End Users" means anyone (including individuals or entities) who interacts with the PSM Model through Customer's Service.
"Fees" means all amounts payable by Customer to PSM under this Agreement.
"Input" means any media (i.e., images, video, audio) files, text, or other data inputted or otherwise made available to the PSM Model, including prompts and queries.
"Intellectual Property Rights" means all patents, copyrights, moral rights, trademarks, trade names, service marks, trade dress, trade secrets and any other form of intellectual property rights now or hereafter recognized in any jurisdiction.
"License Term" means (a) for Enterprise Customers the initial twelve (12) month period commencing on the Effective Date, and each successive twelve (12) month renewal period thereafter unless terminated in accordance with this Agreement; and (b) for Pay As You Go Customers and Self-Serve Customers, the period commencing on the Effective Date and continuing until terminated by either Party in accordance with this Agreement.
"PSM Model" means the PSM model named "PSM-V3" (as such name may be updated by PSM from time to time) and parts thereof, including associated software and services (including, as applicable, the API to the PSM Model made available by PSM), any current and future releases, sub-models or additional versions, improvements and any derivatives thereof.
"Output" means any media (i.e., images, video, audio) files, text, or other data generated by the PSM Model in response to Inputs.
"Pricing" means PSM's then-current pricing for API calls to the PSM Model, as published on the PSM Model pricing page or as otherwise specified in an Order Form.
"Self-Serve Customer" means a Customer who registers through PSM's website, loads funds into Customer's Account which are automatically converted into Credits based on the then-current Pricing, and uses such Credits to access the PSM Model via API calls without entering into an Order Form or committing to a Minimum Annual Commitment.
"Users" means all users of the PSM Model, including the Authorized Customer Users and End Users.
During the License Term and subject to the terms of this Agreement including Section 2.2 (Restrictions) and Customer's payment of the Fees, PSM hereby grants Customer a worldwide (excluding any jurisdictions prohibited by applicable law), non-transferable, non-sublicensable, non-exclusive, revocable, and limited license (the "License") (a) for Authorized Customer Users to use the PSM Model through PSM's API for Customer's internal business operations in accordance with the Documentation; and (b) to utilize the PSM Model in Customer's Service to be used by End Users in accordance with the Documentation ((a) and (b) are collectively the "Permitted Use").
Except as expressly permitted in this Agreement, Customer shall not, and shall not permit any third party (including Users) to: (a) sell, lease, assign, license, sublicense, distribute, make available, or otherwise transfer in whole or in part the PSM Model or any component or derivative thereof to any third party; (b) modify or prepare any derivative work based upon the PSM Model, the Documentation or any component thereof; (c) reverse engineer, disassemble, or decompile the PSM Model or the Documentation, or any component thereof, or attempt to discover or disclose the source code of the PSM Model, or any component thereof unless it is provided to in source code form; (d) encumber, time-share, rent, or lease the rights granted under this Agreement or make the PSM Model available to any third party through a service bureau, resale or similar models; (e) remove, obscure, or alter any notice of Intellectual Property Rights present on or in the PSM Model the Documentation or any component thereof; (f) make any representations or warranties regarding the PSM Model, including any that are false or misleading or which exceed those contained in this Agreement, the Documentation, or any marketing materials otherwise made available to Customer; (g) use the PSM Model in a manner that infringes, misappropriates or otherwise violates any third party's rights (including Intellectual Property Rights) or otherwise violates this Agreement; (h) attempt to circumvent, modify, or disable any part of the PSM Model, including, without limitation, any safety or security measures in the PSM Model; (i) use the PSM Model or Outputs to create, train, or improve (directly or indirectly) any artificial intelligence models, products or services that perform substantially similar functions as the PSM Model, including generating video, images, or audio content from text, image, or other prompts; (j) use the PSM Model, Input or Output, in a manner that violates any applicable laws or this Agreement; or (k) access or use (as applicable) the PSM Model in a country or territory where such access or use is prohibited.
2.3.1. PSM reserves the right to make changes, updates, or enhancements to the PSM Model from time to time. These modifications may include improvements in functionality, performance, or security and will not materially degrade Customer's use of the PSM Model. PSM will use reasonable efforts to notify Customer in advance of any material changes that may affect use of the PSM Model.
2.3.2. PSM reserves the right to change or update its materials for accessing the PSM Model via the API. Such changes or updates may require Customer to update Customer's Service to continue functioning properly with the PSM Model, and it is Customer's sole responsibility at its expense to make any such updates or changes to Customer's Service to maintain interoperability.
2.3.3. PSM may, at its sole discretion, deprecate or discontinue any PSM Model version (in whole or part) upon providing at least thirty (30) days' prior written notice or without notice where required by law.
For Self-Serve Customers, this Agreement may be accepted through the online registration process available on the PSM Model console. By clicking "I Accept", "Log In", "Sign Up" or similar acceptance button, or by using the PSM Model after being presented with this Agreement, Customer agrees to be bound by the terms of this Agreement. Electronic acceptance shall have the same legal effect as a handwritten signature.
Customer is solely responsible for designating individuals as users authorized to access the PSM Model under Customer's Account in accordance with any usage limits specified on the PSM Model service page or in an Order Form (as applicable) (each an "Authorized Customer User" and collectively the "Authorized Customer Users"). Authorized Customer Users may only be individuals who are then-current employees or contractors of Customer and Customer is responsible for ensuring that no other individuals or entities are designated as Authorized Customer Users.
Before enabling use of the PSM Model through Customer's Service, Customer shall enter into legally enforceable agreements with End Users in connection with their use of Customer's Service that contain terms that: (a) are as protective of the PSM Model as set forth in this Agreement, including provisions substantially similar to those in the following: (i) Section 4.2 (Customer Data) with respect to PSM's rights to use and process Input from Customer and its Users, (ii) Section 2.2 (Restrictions), (iii) the Acceptable Use Policy, and (iv) Section 10 (Disclaimers); (b) are no less protective of PSM's Intellectual Property Rights and ownership thereof than under this Agreement; and (c) include customary disclaimers and limits on liability that apply also to licensors such as PSM.
Customer is responsible for all activities by Users in relation to the PSM Model. Violation of use restrictions in the Agreement by Users shall be considered a violation by Customer of the Agreement. PSM reserves the right, upon reasonable notice, to audit Customer's compliance with the requirements of this Agreement.
Customer is responsible for all Inputs. Customer shall not, and shall ensure that Users shall not, include, as part of any Input, any material (a) that violates, or the use of which violates, any copyright, privacy rights, or any other Intellectual Property Rights or (b) that otherwise violates, or the use of which violates, applicable law. Customer represents and warrants to PSM that it has all rights, consents, licenses, and/or permissions necessary to provide the Input and grant the license to Input (as part of the Customer Data) and to otherwise provide Input to PSM in connection with Customer's and its Users use of the PSM Model.
Customer shall, and shall ensure that Users shall, implement or comply (as applicable) with policies and practices designed to: (a) prevent the use of Output in way that might violate the law or the rights of others (including Intellectual Property Rights of third parties) and (b) ensure the accuracy, completeness, and suitability of the Output for the intended purpose, including, where appropriate, use of human review of the Output. Customer is solely responsible for determining the adequacy and effective implementation of these measures and for any decisions, actions or consequences based on use of the Output.
PSM and its licensors retain all right, title, and interest, including all Intellectual Property Rights, in and to PSM's trademarks, service marks and logos, and in and to the PSM Model, the API, any associated software, technology or data that is proprietary to PSM or its licensors, Documentation, and all modifications, enhancements, and derivatives thereof, and no title is granted, express or implied, nor will title be deemed assigned, to Customer hereunder in relation to any of the foregoing. The PSM Model is licensed and not sold to Customer.
PSM will not use Customer Data to train the PSM Model. Subject to the foregoing restriction, Customer hereby grants PSM a limited, non-exclusive, royalty-free license to collect, host, use, access, view, store, copy, display, create derivative works of, adapt, modify, translate, or otherwise process any Customer Data as necessary to grant the License, generate Output, and otherwise provide services to Customer associated with access to and use of the PSM Model. As between Customer and PSM, Customer owns Customer Data to the extent permitted by applicable law.
Customer hereby grants to PSM a non-exclusive, transferable, sub-licensable, worldwide license to use, during the term of this Agreement, Customer's trademarks, service marks and logos (collectively referred to as "Mark") on PSM's websites or marketing materials in connection with (a) PSM identifying Customer as a customer of PSM; and (b) in sales materials of PSM, including press releases and other public announcements.
From time to time, PSM may request Customers to provide PSM with verbal and/or written suggestions, comments or other feedback related to PSM's existing or prospective API or the PSM Model (collectively, "Feedback"). Customer is not obligated to provide PSM with Feedback. To the extent Customer provides Feedback to PSM, Customer hereby assigns to PSM all right, title, and interest (including all Intellectual Property Rights) in and to such Feedback.
"Confidential Information" means non-public information provided under this Agreement that the disclosing party designates at the time of disclosure as being confidential, or, if disclosed orally or visually, is identified as such prior to disclosure, or which, under the circumstances surrounding the disclosure, the receiving party knows or has reason to know should be treated as confidential. The PSM Model, any pricing information, and the terms and conditions of this Agreement and any Order Form will be deemed PSM's Confidential Information.
The Parties agree to use all reasonable care to prevent disclosure of the other Party's Confidential Information to any third party. Either Party may disclose Confidential Information to its employees, consultants, and other third-party providers solely to the extent necessary to exercise its rights or obligations under this Agreement, provided that the Party has a non-disclosure agreement in place with such third-party provider that protects such Confidential Information in a manner no less protective than this Agreement.
Upon any termination or expiration of this Agreement, the receiving Party will continue to maintain the confidentiality of the disclosing Party's Confidential Information for the duration of the Term plus five (5) years thereafter, except that source code and any other trade secret will be held in confidence for as long as such information remains a trade secret under applicable law, but in no event for less than five (5) years following termination or expiration of this Agreement.
6.1. Each party agrees to comply with its respective obligations under Data Protection Laws that apply to such party regarding the processing of Personal Data. Customer shall not use any Personal Data unless it has determined and established a legal basis for such use, considered lawful and legitimate under applicable Data Protection Laws.
6.2. PSM will process Personal Data that it may collect or obtain under this Agreement related to Customer's End Users access and use of the PSM Model in accordance with its privacy policy available at purplesquirrelmedia.io/legal/privacy. Without derogating from the above, PSM shall have the right to collect, use, analyze, and otherwise process Usage Data and textual prompts included in the Input for any purpose, including analytics, product improvement, research, and development, provided that such data is aggregated and anonymized.
6.3. With regard to Personal Data included in the Inputs, in the event processed by PSM, the parties shall comply with the provisions of the DPA and constituting an integral part of this Agreement.
6.4.1. Secure Access. Customer is responsible for implementing security measures to ensure strict control over access credentials of all Authorized Customer Users, including all API Keys, and to prevent unauthorized access to Customer's Account and the PSM Model. Customer shall promptly notify PSM in writing of any actual or suspected unauthorized access to Customer's Account, compromise of any API Keys, or use of the PSM Model that comes to Customer's attention.
6.4.2. Malicious Code. Customer shall take commercially reasonable actions to prevent the introduction and proliferation of files, scripts, code, or programs that are designed, intended to, or have the effect of disrupting, damaging, or interrupting the PSM Model, in whole or in part, including any viruses, worms, time bombs, trojan horses, and other harmful code ("Malicious Code").
PSM shall implement and maintain a written information security program that incorporates administrative, technical, and physical safeguards designed to ensure the security, confidentiality, and integrity of Customer Data.
Customer's payment obligations and the manner in which Fees are calculated and charged depend on the applicable payment model selected by or applicable to Customer. All Fees and usage charges are stated in U.S. Dollars. All Fees paid or charged are non-refundable except as expressly stated in this Agreement or an applicable Order Form.
7.1.1. Minimum Annual Commitment Model. Enterprise Customers may commit to a Minimum Annual Commitment as specified in an Order Form. Upon receipt of payment, PSM will issue Credits to Customer's Account equal to the amount paid (i.e., each U.S. Dollar paid equals one Credit). Credits may be used by Customer during the applicable Credit Period to make API calls to the PSM Model.
7.1.2. Self-Serve Model. Self-Serve Customers may load funds into their Account through the PSM Model console at any time. Upon receipt of payment, such funds will be automatically converted into Credits and added to Customer's Credit Balance at a one-to-one ratio (i.e., each U.S. Dollar loaded equals one Credit).
7.1.3. Pay As You Go Model. The Pay As You Go model is available only to Enterprise Customers via Order Form. For Pay As You Go Customers, PSM will track Customer's actual usage of the PSM Model and charge Customer based on actual API calls made during each billing period according to the then-current Pricing.
PSM may modify the Pricing for API calls at any time by updating the PSM Model pricing page. Pricing changes apply to all Customers immediately upon the effective date.
Payments are processed via third-party payment processors made available by PSM (such as via Stripe). Customer must provide accurate billing information and promptly update any changes to it.
If any payment by Customer fails or is declined, PSM will attempt to process the payment up to three (3) times over a period of ten (10) days. If payment remains unsuccessful after such attempts, PSM may suspend Customer's access to the PSM Model upon five (5) days' written notice and revoke all access to Credits.
All Fees and other monies payable by Customer under this Agreement and/or any Order Form (as applicable) are exclusive of any taxes. Customer shall be responsible for the payment of all applicable Taxes, except for any taxes based solely on PSM's income.
Subject to Section 8.2 (Exclusions), PSM agrees to defend Customer against any claim, action, suit or proceeding brought by a third party alleging that the authorized use of the PSM Model infringes any third party Intellectual Property Right ("IP Claim") and shall pay Customer for the amounts finally awarded by a court of competent jurisdiction payable to such third party claimant.
PSM has no obligation under Section 8.1 with respect to any IP Claim to the extent such IP Claim arises from: (a) modification or transformation to the PSM Model not conducted by PSM; (b) combination of the PSM Model with products, material, data or services not provided by PSM; (c) Customer's or its Users' use of or interaction with (as applicable) the PSM Model in violation of this Agreement, applicable law or industry standards applicable thereto; (d) Customer's or its Users' failure to use any updates, modifications, safety features or functionalities or corrections to the PSM Model made available by PSM; (e) Customer Data; (f) Customer's Service; (g) Customer's or Users' settlement of an IP Claim without the prior written consent of PSM.
Customer agrees to defend PSM and its Affiliates (including PSM's and its Affiliates' directors, officers, and employees) (each a "PSM Indemnified Party") against any claim, action, suit or proceeding brought by a third party resulting from or arising out of: (a) use by Customer or Users of the PSM Model in violation of this Agreement; (b) Customer Data; or (c) Customer's Service, to the extent such Claim arises in relation to Customer's Service independently of the inclusion of the PSM Model in Customer's Service.
UNDER NO CIRCUMSTANCES WILL (A) EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, REGARDLESS OF THE FORM IN WHICH THE ACTION IS BROUGHT (INCLUDING NEGLIGENCE), ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING CLAIMS FOR LOSS OF DATA, INTERRUPTION OF SERVICES, OR LOSS OF BUSINESS OR PROFITS, WHETHER OR NOT A PARTY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, OR (B) EACH PARTY'S TOTAL LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO PSM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PSM MODEL AND ALL OUTPUTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WITHOUT LIMITING THE FOREGOING, PSM, ON BEHALF OF ITSELF, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE LICENSORS, CONTRACTORS AND SUPPLIERS, MAKES NO REPRESENTATION OR WARRANTY THAT: (A) CUSTOMER'S OR USERS' USE OF THE PSM MODEL WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PSM MODEL OR ANY OUTPUT WILL BE ACCURATE, COMPLETE, CURRENT OR RELIABLE OR MEET CUSTOMER'S REQUIREMENTS; OR (C) DEFECTS OR ERRORS IN THE PSM MODEL OR ANY OUTPUT WILL BE DISCOVERED OR CORRECTED.
Customer acknowledges and agrees that Customer (and not PSM) has control over the Input. Due to the nature of machine learning and artificial intelligence generally, Output may not be unique across users, and the PSM Model may generate the same or similar Output for other users. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY OUTPUT AND ANY USE OR OTHER DECISIONS BASED THEREUPON.
The term of this Agreement commences on the Effective Date and, unless terminated earlier in accordance with the Agreement, remains in effect until the date on which it is terminated by either Party in accordance with its terms ("Term"). Upon termination of this Agreement, all API Keys will expire immediately and any unused Credits in Customer's Account will be forfeited.
Either Party may terminate this Agreement and/or any Order Form upon written notice if the other Party materially breaches this Agreement and fails to correct the breach within fourteen (14) days following written notice specifying the breach.
PSM may suspend or limit access by Customer or, at PSM's sole discretion, individual Authorized Customer Users, to the PSM Model at any time: (a) if PSM reasonably believes that Customer is using the PSM Model in violation of applicable law or the Agreement; (b) if PSM reasonably determines that Customer's use of the PSM Model adversely affects or interferes with the normal operation of the PSM Model in a material manner; (c) if PSM is prohibited by an order of a court or other governmental agency from providing the PSM Model (in whole or part); (d) for Customer's non-payment of any fees due and payable to PSM.
The Parties will endeavor to resolve any dispute with respect to this Agreement (including any Order Form) in good faith within thirty (30) days of a dispute being raised by one Party with the other Party. The Parties agree that any unresolved controversy or claim (excluding claims for injunctive or other equitable relief) shall be governed by and construed under the laws of the State of New York, without reference to principles and laws relating to the conflict of laws. Customer hereby consents to personal jurisdiction before the federal and state courts in the State of New York.
If a term is not defined in the Agreement, then the term shall be interpreted in accordance with its generally understood meaning in the industry or business context in which either Customer or PSM operates as applicable based on the context in which the term is used in the Agreement.
This Agreement, together with all Order Forms, the DPA, the Credit Terms, the Acceptable Use Policy, and all Documentation, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
Customer may not assign or transfer this Agreement, or any rights granted hereunder, without PSM's prior written consent. PSM may assign this Agreement without consent to an Affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets.
All notices under this Agreement shall be in writing and sent to the addresses specified in the applicable Order Form, or to legal@purplesquirrelmedia.io for PSM.