Terms of Service

(a) Authorization

If You use Magieva's Services on behalf of another person or entity, (a) all references to “You” throughout these Terms (other than in this Section 1(a)) will include that person or entity, (b) You represent that You are authorized to accept these Terms on that person's or entity's behalf, and (c) in the event You or that person or entity violates these Terms, that person or entity also agrees to be responsible to Magieva.

(b) Jurisdiction

You may only use Magieva's Services in jurisdictions authorized by Magieva. Use of Magieva's Services is currently authorized only in the United States.

(c) Use and Sharing

Magieva's Services are provided to You only for Your internal business use and not for the benefit or use of any third party. Magieva may permit You to designate authorized individuals (“Authorized Users”) to use Magieva's Services, and only Authorized Users may use Magieva's Services. You will be solely responsible for Your Authorized Users and their activity in connection with the Services.

(a)

As between the parties and to the extent permitted by applicable law, Magieva agrees that You retain all rights to Your Inputs. “Inputs” means queries, prompts, submissions, data, attachments, or other information submitted to the Services by or on behalf of Customer or its Authorized Users (including derivatives thereof). Depending on the preferences You enable through the account settings, Outputs that are generated by the Services may be subject to third-party terms. Subject to any applicable third-party terms, as between the parties and to the extent permitted by applicable law, You will own the Outputs. “Outputs” means content, visuals, results, text, video, and imagery generated by the third-party services in response to Inputs submitted using the Services (Inputs and Outputs are each “User Content”).

(b)

Except for the license You grant below, as between You and Magieva, You retain all rights in and to Your User Content, excluding any portion of the Services included in Your User Content. You grant Magieva a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit Your User Content and any name, username or likeness provided in connection with Your User Content in all media formats and channels now known or later developed without compensation to You or any third party to provide You the Services and to improve, develop and operate the Services and Magieva's other products and offerings. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that You may have under any applicable law or under any legal theory.

(c)

You represent and warrant that Your User Content, and Magieva's use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, use, store, or share any User Content that:

• Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
• Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
• May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
• Contains or depicts any statements, remarks, or claims that do not reflect Your honest views and experiences;
• Impersonates, or misrepresents Your affiliation with, any person or entity;
• Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
• Contains any private or personal information of a third party without such third party's consent;
• Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
• In Magieva's sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying Magieva's Services, or may expose Magieva or others to any harm or liability of any type.

(d)

Enforcement of this Section 4 is solely at Magieva's discretion, and failure to enforce this section in some instances does not constitute a waiver of Magieva's right to enforce it in other instances. This Section 4 does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.

(e)

Magieva does not undertake to review all User Content, and Magieva expressly disclaims any duty or obligation to undertake any monitoring or review of any User Content. Although Magieva has no obligation to screen, edit, or monitor User Content, Magieva may:

• Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice;
• Terminate or suspend Your access to all or part of the Services;
• Take any action with respect to Your User Content that is necessary or appropriate;
• Cooperate fully with any law enforcement authorities or court order.

(f)

It is Your responsibility to evaluate whether Outputs are appropriate for Your use case, including where human review is appropriate, before using or sharing Outputs. You acknowledge that factual assertions in Outputs should not be relied upon without independently checking their accuracy, as they may be false, incomplete, misleading or not reflective of recent events or information.

(a)

You will not use Magieva's Services if You are not eligible and will not use them other than for their intended purpose. Further, You will not, in connection with Magieva's Services:

• Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
• Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
• Use or attempt to use another user's account without authorization;
• Impersonate or post on behalf of any person or entity;
• Sell or resell Magieva's Services;
• Copy, reproduce, distribute, publicly perform, or publicly display all or portions of Magieva's Services;
• Modify Magieva's Services, remove proprietary rights notices;
• Use Magieva's Services in any manner that could interfere with or disrupt the Services;
• Reverse engineer any aspect of Magieva's Services;
• Use any data mining, robots, or similar data gathering methods;
• Develop or use any applications that interact with Magieva's Services without prior written consent;
• Send spam, unsolicited communications, chain letters, or pyramid schemes;
• Link to any online portion of the Services; or
• Use Magieva's Services for any illegal or unauthorized purpose.

(b)

Enforcement of this Section 5 is solely at Magieva's discretion.

(a)

In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Magieva has adopted a policy of terminating, in appropriate circumstances, the accounts of users who are deemed to be repeat infringers. Magieva may also, in its sole discretion, limit access to Magieva's Services and terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

(b)

If You believe that anything on Magieva's Services infringes any copyright that You own or control, You may submit a notification of such infringement to Magieva's designated agent:

(a)

Magieva's Services may rely on or interoperate with third-party products, services, and software (“Third-Party Materials”). These Third-Party Materials may have their own terms and conditions and privacy policies that govern Your use. Magieva does not control and is not responsible for Third-Party Materials or for the terms and conditions or privacy policies of the providers of Third-Party Materials.

(b)

Certain software made available via the Services may be subject to open-source or other license terms (“Open-Source Software”). Nothing in these Terms limits Your rights under the terms of any applicable end user license for such Open-Source Software. To the extent any provisions of these Terms conflict with any such license, the provisions of such license will prevail with respect to the applicable Open-Source Software.

(c)

Magieva may provide links to third-party websites, services, or content (“Third-Party Content”) as a convenience to You. Your use of Third-Party Content is at Your own risk, and Your dealings or correspondence with third parties, and any terms, conditions, warranties, or representations associated with such dealings, are solely between You and the applicable third party.

(d)

Magieva has no obligation to monitor Third-Party Materials or Third-Party Content and may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through the Services at any time.

(a)

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MAGIEVA AND THE OTHER MAGIEVA PARTIES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY MAGIEVA PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

(b)

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF MAGIEVA AND THE OTHER MAGIEVA PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO MAGIEVA FOR ACCESS TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM; OR (B) $100.

(c)

Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under these Terms. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms. The limitations in this Section 14 will apply even if any limited remedy fails of its essential purpose. These limitations will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Magieva or for any other matter that cannot be excluded or limited under applicable law.

(a) Claims This Section Applies To

Except as described in this Section 16, any dispute or claim relating in any way to Your access to or use of the Services, or to any products or services sold or distributed by Magieva or through the Services, will be resolved by binding arbitration, rather than in court. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys' fees, and costs) and must follow these Terms as a court would. This Section 16 (the “Arbitration Agreement”) is intended to be interpreted broadly and applies to, without limitation, all disputes or claims arising out of or related to these Terms, the Services, and Your relationship with Magieva.

(b) Informal Dispute Resolution Before Arbitration

Magieva wants to address Your concerns without the need for a formal legal dispute. Before filing a claim against Magieva, You agree to try to resolve the dispute informally by contacting legal@magieva.com. Magieva will try to resolve the dispute informally by contacting You via email. If a dispute is not resolved within sixty (60) days of submission, You or Magieva may bring a formal proceeding.

(c) Claims Subject to Binding Arbitration; Exceptions

All disputes or claims that arise between You and Magieva (including between You and any employees, officers, directors, or agents of Magieva) relating to the Services will be resolved exclusively by final and binding arbitration, except that: (1) You may assert claims in small claims court if Your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) You or Magieva may seek injunctive or other equitable relief in a state or federal court in Los Angeles County, California, in the event of the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

(d) Binding Individual Arbitration

Arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Arbitration Agreement. The AAA Rules are available at https://adr.org/ or by calling the AAA at 1-800-778-7879. A party who wishes to start arbitration must submit a written demand for arbitration to the AAA and give notice to the other party as specified in the AAA Rules.

(e) Arbitration Procedure and Location

The arbitration will be conducted by a single arbitrator. The arbitration will be held at a location determined under the AAA Rules unless You and Magieva both agree to another location or to conduct the arbitration by telephone or through written submissions. The arbitrator's decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

(f) Arbitration Fees

If You are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Magieva will pay as much of the filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. If the arbitrator determines the claim(s) You assert in the arbitration are frivolous, You agree to reimburse Magieva for all fees associated with the arbitration paid by Magieva on Your behalf that You otherwise would be obligated to pay under the AAA's rules.

(g) Frivolous or Improper Claims

To the extent permitted by applicable law, the claimant must pay the counterparty's fees and expenses (including but not limited to reasonable attorneys' fees) incurred in connection with any arbitration claims the arbitrator determines to be frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

(h) Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

(i) Mass Disputes

If, at any time, 25 or more similar demands for arbitration are asserted against Magieva or related parties by the same or coordinated counsel or entities (“Mass Dispute”), the following additional procedures will apply:

1. Bellwether Arbitrations: Counsel for the claimants and counsel for Magieva shall each select ten (10) cases (for a total of twenty (20)) to proceed first in individual arbitrations as bellwether proceedings (“Bellwether Arbitrations”). The remaining cases shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those cases unless and until they are selected to proceed to individual arbitration proceedings as set forth below. If the parties are unable to resolve the remaining cases after the Bellwether Arbitrations are resolved, each side shall select another ten (10) cases (for a total of twenty (20)) to proceed to individual arbitration.
2. Mediation: After each set of Bellwether Arbitrations has been resolved, the parties shall engage in a mediation of all remaining cases with a retired federal or state court judge, and Magieva shall pay the mediator's fees.
3. Tolling: The statutes of limitations, including the time period in Section 16(l), applicable to the remaining cases will be deemed tolled from the time a claimant makes a written demand to the time that claimant's case is selected for a Bellwether Arbitration, withdrawn, or otherwise resolved.
4. Opt-Out to Court: A court of competent jurisdiction shall have the authority to enforce the Mass Dispute procedures described in this subsection and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Magieva. If the Mass Dispute procedures are found to not apply to Your claim, You may opt to have Your claim heard in court, subject to these Terms.

(j) Opting Out of Arbitration

You have the right to opt out of binding arbitration within thirty (30) days of the date You first accepted these Terms by sending an email to legal@magieva.com with the subject line “Arbitration Opt-Out.” The notice must include Your full name, mailing address, and a clear statement that You want to opt out of this Arbitration Agreement. If You validly opt out of the Arbitration Agreement, Magieva will also not be bound by it. All other provisions of these Terms will continue to apply.

(k) Rejection of Modifications

If Magieva makes any future change to this Arbitration Agreement, You may reject that change by sending Magieva written notice within thirty (30) days of the change to legal@magieva.com. If You do so, Your account with Magieva will be immediately terminated and this Arbitration Agreement, as in effect immediately prior to the changes You rejected, will survive.

(l) Two Years to Assert Claims

To the extent permitted by law, any claim or dispute must be filed within two (2) years. The two-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within two years, it is permanently barred.

(m) Severability

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Arbitration Agreement or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

(a)

These Terms constitute the entire agreement between You and Magieva relating to Your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You without the prior written consent of Magieva. Magieva's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Section titles in these Terms are for convenience only and have no legal or contractual effect.

(b) Contact Information

If You have any questions about these Terms or the Services, please contact Magieva at: