Mirage API Terms

BY CLICKING ON THE “AGREE AND CONTINUE” BUTTON OR INTERACTING IN ANY WAY WITH THE MIRAGE US LLC AND ITS AFFILIATES (“MIRAGE”) API, DATA OR SERVICES, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU” OR “LICENSEE”) UNCONDITIONALLY CONSENT AND AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS API ACCESS AGREEMENT. THIS AGREEMENT ALSO REFERS TO AND INCORPORATES THE ADDITIONAL TERMS (DEFINED BELOW) AND ANY ORDERING DOCUMENT SIGNED BY LICENSEE AND MIRAGE OR MIRAGE INTERFACE THAT LICENSEE USES TO PURCHASE ACCESS TO THE MIRAGE API (AN “ORDER FORM”) (COLLECTIVELY, THE “AGREEMENT). ANY TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH IN THE APPLICABLE ORDER FORM. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO DO SO. IF YOU DO NOT AGREE TO THIS AGREEMENT OR ARE NOT AUTHORIZED TO BIND YOURSELF, DO NOT CLICK THE “ACCEPT” BUTTON AND YOU ARE NOT PERMITTED TO USE THE MIRAGE API OR ACCESS THE MIRAGE SERVICES.

As used in these API Terms, “we,” “our” and “us” refer to Mirage US LLC and “you,” and “your,” refer to the individual, company, or legal entity that you represent and any affiliates it may have. These Terms apply to all developers, customers, and users building applications or other functionality that interact with our APIs. These Terms do not grant you any right to access or use any non-public Mirage APIs, which would be governed by a separate agreement with Mirage.

Mirage may, in its sole discretion, modify or update these Terms (including any referenced policies, terms, or their URLs) from time to time, and so you should review this page periodically. If we make a material change to these Terms, we will notify you as required by law. Your continued use of the APIs after any such change constitutes your acceptance of the new Terms. If you do not agree to any of these terms or any future Terms, do not use or access (or continue to access or use) the APIs.

Grant of Licenses.
1. Mirage API. Subject to the terms of this Agreement, Mirage grants Licensee a non-exclusive, non-transferable, non-assignable, non-sublicensable, and revocable right and license to access and use (a) the Mirage application programming interface, related documentation, tools and other data, product materials or information provided by Mirage (collectively, the “Mirage Services”), and (b) to allow Licensee to receive information from and provide information to Mirage (the “Mirage API”), in each case, solely to enable the integration of the Mirage Services into Licensee’s applications, products and services (the “Licensee Services”) and to make the Licensee Services available to End Users (defined below). For clarity, unless otherwise specified by Mirage in writing, any and all rights or licenses granted by Mirage to Licensee shall only apply to Licensee and not Licensee’s affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Licensee**.**
2. Additional Terms. Use of the Mirage Services is subject to the Mirage Studio Terms of Service available at https://mirage.app/legal/mirage-studio-terms and Captions Terms of Service available at https://mirage.app/legal/captions-terms (the “Platform Terms”), which includes the Mirage Acceptable Use Policy available at https://mirage.app/legal/aup (the “Mirage AUP”). The Mirage Services are also provided in accordance with Mirage’s Privacy Policy available at https://mirage.app/legal/privacy-policy (collectively with the Platform Terms and the Mirage AUP the “Additional Terms”). Please review these Additional Terms before using the applicable Mirage Services, as use of such services shall be deemed consent to such Additional Terms, provided, however, that the terms and conditions of this Agreement will govern to the extent of any conflict with the Additional Terms. Licensee shall ensure all End Users accept substantially similar terms to the Additional Terms before using the applicable Mirage Services.
3. Account and Access Codes. Licensee must provide accurate and up-to-date account information. Licensee is responsible for all activities that occur under Licensee’s account, including the activities of any end user (each, an “End User”) who accesses the Mirage Services through the Licensee Services. Mirage will provide Licensee with access code(s) (e.g., password, key, tokens, etc.; collectively “Access Codes”) to access the Mirage API. Licensee may not sell, transfer, sublicense or otherwise disclose the Access Codes to any party other than those expressly permitted by this Agreement. Licensee may not modify or attempt to circumvent the Access Codes. Licensee is responsible for maintaining the secrecy and security of Licensee’s Access Codes. Licensee will promptly notify Mirage if Licensee becomes aware of any unauthorized access to or use of Licensee’s account or the Mirage Services. In addition, Licensee shall comply with any limitations on the frequency of access, calls and use of the Mirage API as provided to Licensee by Mirage from time to time. Mirage expressly reserves the right in its sole discretion to limit the number and/or frequency of Mirage API requests.
4. Revocation. Mirage reserves the right to deny and/or revoke Licensee’s Mirage API access for any reason. Such reasons may include, but are not limited to, that the Access Codes have been compromised, published, or shared, or Licensee has been abusive or in violation of this Agreement.
5. Use Restrictions. Licensee will not, and will not permit End Users to: (a) use the Mirage API, the Mirage Services or Licensee Content (as defined below) in a manner that violates any applicable laws or the Mirage AUP; (b) use the Mirage API, Mirage Services or Licensee Content in a manner that infringes, misappropriates, or otherwise violates any third party’s rights; (c) send Mirage any personal information of children under 13 or the applicable age of digital consent or allow any End User under 18 to use the Mirage Services; (d) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, aggregate, index, reverse engineer or decompile (except to the limited extent such restrictions are prohibited by applicable statutory law), derive source code or algorithms from, modify or alter, interfere with, defeat, avoid, disrupt, bypass, remove, disrupt or disable any part of the Mirage API or Mirage Services; (e) use the Mirage API, the Mirage Service, or any Output (as defined below) to create, train, fine-tune, evaluate for the purpose of training, or otherwise improve any artificial intelligence or machine-learning model or system that competes with the Mirage Services, whether standalone or embedded, including by (i) generating or curating datasets, (ii) supervising or aligning another model, or (iii) extracting weights, parameters, architectures, embeddings, prompts, safety systems, or other artifacts (collectively, “Distillation”); (f) use any method to extract data or content from the Mirage Services other than as permitted through the Mirage API; (g) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (h) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any content accessed through the Mirage API; or (i) permit any third party to engage in any of the foregoing proscribed acts.
Limitations.
1. Changes to the Mirage API. Licensee acknowledge that Mirage may change or republish APIs, or otherwise change such features available in the Mirage API from time to time, and that it is Licensee’s obligation and responsibility to ensure that calls or requests Licensee make to or via the Mirage API are compatible with then-current Mirage API. Mirage may attempt to inform Licensee of any changes with reasonable notice so Licensee can adjust Licensee’s use of the Mirage API, but Mirage is under no obligation to do so.
2. Non-Exclusivity. The rights granted by Mirage in this Agreement are nonexclusive and Mirage reserves the right to: (a) act as a developer of products or services related to any of the products that Licensee may develop in connection with Licensee’s use of the Mirage API and (b) appoint third parties as developers or systems integrators who may offer products or services which compete with Licensee Services, each subject to Section 3 (Term and Termination) below.
3. Downtime and Suspensions. Mirage will use commercially reasonable efforts to make the Mirage API available on a seven day per week, 24-hour per day basis. Licensee’s access to and use of the Mirage API may be interrupted for the duration of any scheduled, unscheduled, or unanticipated downtime, suspension or other unavailability of any portion or all of the Mirage API, for any reason and in Mirage’s sole discretion, including but not limited to: (a) as a result of power outages, system failures or other interruptions, (b) for scheduled and unscheduled downtime to permit maintenance or modifications to the Mirage API, (c) in the event of a denial of service attack or other attack or event that Mirage determines may create any risk to Mirage, Licensee or any of Mirage’s customers or licensees, or (d) in the event that Mirage determines that any service is prohibited by applicable law or otherwise determines that it is necessary or prudent to do so for legal or regulatory reasons. Mirage shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Licensee may incur as a result of any downtime, suspension or other unavailability of the Mirage API.
4. Licensee Services and Support. Licensee is solely responsible for any Licensee Services that make use of the Mirage API, including any data, text, images or content contained therein. Licensee is solely responsible for providing all support and technical assistance to End Users of the Licensee Services. Licensee acknowledges and agrees that Mirage has no obligation to provide support or technical assistance directly to End Users or to Licensee and Licensee shall not represent to any of its End Users that Mirage is available to provide such support.
5. Personal Data. If Licensee uses the Mirage API to process personal data, Licensee must (a) provide legally adequate privacy notices and obtain necessary consents for the processing of personal data by the Mirage API, and (b) process personal data in accordance with applicable law.
Term and Termination.
1. Term. The term of this Agreement will commence upon the earlier of the Effective Date of an Order Form, or the date Licensee first accesses the Mirage API, and will remain in effect until terminated pursuant to this Section 3 (“Term”). If Licensee purchases a subscription to the Mirage API, unless otherwise stated in an Order Form, the subscription term will automatically renew for successive periods as further set forth in an Order Form.
2. Termination. Mirage may terminate this Agreement or suspend access to the Mirage API or the Mirage Services (in whole or in part): (a) for no reason or any reason upon seven (7) days’ notice to Licensee and (b) immediately (i) if Licensee breaches any provision of this Agreement or the Additional Terms, (ii) if Mirage is required to do so by applicable law, (iii) if Mirage ceases operating the Mirage API, (iv) in case of any security breach or other similar concern, or (v) if Mirage otherwise determines in its discretion that such action is necessary to avoid harm, liability or reputational damage to Mirage, the Mirage API, the Mirage Services, or any end user.
3. Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease and Licensee and all End Users shall cease using the Mirage API and the Mirage Services; provided, that the provisions of Sections 5 (Ownership), 6 (Confidentiality), 7.2 (Disclaimers), 8 (Limitation of Liability), 9 (General Provisions) and this Section 3.3 shall survive.
Fees
1. Fees. Licensee agrees to pay all fees charged to Licensee’s account (“Fees”) according to the prices and terms on the Pricing Page (available at https://help.mirage.app/docs/api/pricing), or as otherwise stated in an Order Form. Except as expressly provided in this Agreement or an Order Form, (a) Fees are based on services purchased and not actual usage, and (b) all commitments under this Agreement are non-cancellable and all fees are non-refundable.
2. Invoicing and Payment. If Licensee pays online via credit or debit card, Licensee agrees to be bound by the Stripe, Inc. Services Agreement available at https://stripe.com/us/legal. Licensee will provide Mirage with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Mirage. If Licensee provides credit card information to Mirage, Licensee authorizes Mirage to charge such credit card for all Fees listed in the Order Form during the Term. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Mirage will invoice Licensee in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced Fees are due net thirty (30) days from the invoice date. Licensee is responsible for providing complete and accurate billing and contact information to Mirage and notifying Mirage of any changes to such information.
3. Late Payment. Mirage will notify Licensee in the event Licensee fails to pay any invoice in accordance with the terms of this Agreement. If any invoiced amount is not received by Mirage by the due date, then without limiting Mirage’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
4. Suspension of Services and Acceleration. If any charge owing by Licensee under this Agreement or any other agreement is thirty (30) days or more overdue (or ten (10) or more days overdue in the case of amounts Licensee has authorized Mirage to charge Licensee’s credit card), Mirage may, without limiting its other rights and remedies, accelerate Licensee’s unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend access to the Mirage API until such amounts are paid in full.
5. Taxes. The Fees are exclusive of all taxes (including, but not limited to, sales, use and value-added taxes), and Licensee shall be responsible for payment of all such taxes, excluding those based solely on Mirage’s net income. All Fees are non-refundable.
Ownership.
1. Licensee Content. Licensee and Licensee’s End Users may provide data, content, information and other materials to the Mirage API (“Input”), and receive output from the Mirage API based on the Input (“Output”). Input and Output together are “Licensee Content.” Output may be generated by, but does not include, Mirage’s foundational and other artificial intelligence models (the “Models”). As between Licensee and Mirage, and to the extent permitted by applicable law, Licensee (a) retains all ownership rights in Input and Licensee Services and (b) owns and, except as otherwise expressly set forth herein, retains all rights in and to Output.
2. Mirage License. Licensee hereby grants to Mirage a non-exclusive, royalty-free, worldwide, fully paid-up, sublicensable, transferable right and license to: (a) host, cache, store, reproduce, transmit, modify, adapt, publish, translate, create derivative works from, distribute and use Licensee Content to provide the Services, to improve the Mirage Services, and to develop new Mirage services and products; (b) create anonymized compilations and analyses of Licensee Content that is combined with data from numerous other customers (“Aggregate Data”); and (c) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”).
3. Mirage API. As between Licensee and Mirage, Mirage shall retain all right, tile and interest in and to the Mirage API, Models, Mirage Services, the Aggregate Data, and Analyses, and all intellectual property rights connected thereto. Licensee acknowledges and agrees that Mirage shall have exclusive ownership rights to, and the exclusive right to use and distribute, the Aggregate Data and Analyses for any purpose consistent with its privacy policy and applicable law, including, but not limited to incorporation into products and services for commercial or non-commercial purposes, advertising, marketing; provided, however, that Mirage shall not distribute Aggregate Data and Analyses in a manner by which Licensee or any of its users could reasonably be identified. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Mirage (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to any products or services offered by Mirage, the Mirage API, Aggregate Data, and Analyses, and all copies, modifications and derivative works thereof.
4. Intellectual Property Notices; Attribution. Licensee may not remove, obscure, or alter any notice of any copyright notice, patent notice or other marking signifying an intellectual property or proprietary right contained within the Mirage API. Licensee shall conspicuously label the Licensee Services with the words “Mirage,” and comply with (a) other attribution requirements required in an Order Form and (b) any branding requirements that Mirage may provide to Licensee from time to time. At no time will Licensee imply that Mirage endorses the Licensee Services or the Output.
5. Feedback. Licensee may provide Mirage with comments concerning the Mirage API and Licensee’s evaluation and use thereof, including bug reports, evaluations, proposed product integrations (and associated metrics and learnings) (“Feedback”). Licensee agrees that Mirage and its designees will be free to copy, modify, create derivative works of, publicly display, disclose, distribute, license and sublicense, incorporate and otherwise use the Feedback, including derivative works thereto, for any and all commercial and non-commercial purposes with no obligation of any kind to Licensee.
Confidentiality.
1. Definition. Each party agrees that the business, technical and financial information, including without limitation, the Mirage API, and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.
2. Restrictions. The receiving party hereby agrees (a) to hold the disclosing party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the receiving party employs with respect to its own confidential materials), (b) not to divulge any Confidential Information to any third person (except consultants acting on its behalf, subject to the conditions stated below), (c) not to use any Confidential Information except for the purposes set forth in this Agreement and (d) not to copy or reverse engineer any Confidential Information. Any employee or consultant given access to the Confidential Information must have a legitimate “need to know” and be apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry. Each party acknowledges and agrees that due to the unique nature of Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, that upon any such breach or any threat thereof, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.
3. Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
Warranties and Disclaimers.
1. Mutual. Each party represents, warrants and covenants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) it shall comply with all applicable laws in connection with its performance hereunder (including laws relating to personal information and privacy); and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
2. DISCLAIMER. THE MIRAGE API AND OUTPUT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. MIRAGE MAKES NO WARRANTY OF ANY KIND THAT THE MIRAGE API AND OUTPUT AND, OR ANY RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S, OR ANY OTHER END USER’S OR PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. DUE TO THE NATURE OF ARTIFICIAL INTELLIGENCE GENERALLY, LICENSEE ACKNOWLEDGES THAT OUTPUTS MAY CONTAIN ERRORS AND MISSTATEMENTS AND MAY BE INCOMPLETE OR INACCURATE. BEFORE LEVERAGING ANY OUTPUTS, LICENSEE OR ANY END USER IS RESPONSIBLE FOR MAKING ITS OWN DETERMINATION THAT THE OUTPUTS ARE SUITABLE, AND LICENSEE IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY OUTPUTS.
INDEMNITY; LIMITATION OF LIABILITY
1. Indemnity.
  1. Licensee. Licensee will indemnify, defend (at Mirage’s request) and hold Mirage and its affiliates and their respective directors, officers, employees, agents, contractors, end users and licensees harmless from and against any claims, losses, costs, expenses (including reasonable attorneys’ fees), damages or liabilities based on or arising from: (a) Licensee’s or any End User’s use of the Mirage Services or the Mirage API in violation of this Agreement or the Additional Terms or (b) any Licensee Services.
  2. Mirage. Mirage agrees to (a) defend against and hold Licensee harmless from any claim by a third party that the Mirage Services or the Mirage API infringe a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (b) indemnify Licensee for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Mirage Services or the Mirage API become or, in Mirage’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Mirage may, at its option (1) obtain for Licensee the right to continue using the Mirage Services or the Mirage API or (2) replace or modify the Mirage Services or the Mirage API so that such services become non-infringing. If (1) and (2) are not reasonably available to Mirage, Mirage may terminate this Agreement upon written notice to Licensee. Mirage shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Mirage Services or the Mirage API not strictly in accordance with this Agreement or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Mirage Services or the Mirage API not created by or for Mirage, or (iii) Licensee’s continuing allegedly infringing activity after being notified thereof. The foregoing states the entire liability of Mirage, and Licensee’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Mirage Services or the Mirage API, any part thereof or its use or operation.
  3. Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
2. LIMITATION OF LIABILITY. EXCEPT FOR ANY BREACH OF SECTION 6 (CONFIDENTIALITY) AND EACH PARTY’S INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF LOSS OR DAMAGE, (I) FOR ANY LOST PROFITS, LOSS OF USE, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, MIRAGE API OR TECHNOLOGY, (II) FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED, TO LOSS OF REVENUES AND LOSS OF PROFITS OR (III) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE TOTAL AMOUNT LICENSEE HAS PAID TO MIRAGE IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
Dispute Resolution
1. Mandatory Arbitration. Licensee and Mirage agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to your access or use of the Services including without limitation (i) the content available within the Service such as Mirage Content; (ii) the Agreement (including its formation, performance, and breach); or (iii) that in any way relate to the provision or use of the Services, your relationship with Mirage, or any other dispute with Mirage, (collectively, “Claims”), shall be resolved exclusively through binding arbitration in accordance with this Section 9 (collectively, the “Arbitration Agreement”).
2. Informal Dispute Resolution. For any dispute between you and Mirage, the parties agree to first attempt to resolve the dispute informally. This requires first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute, along with the name and the email address associated with Licensee’s account, if any, to the following email address: [email protected]. For any dispute that Mirage initiates, we will send our written description of the dispute to the email address associated with Licensee’s account. The written description must be on an individual basis and provide, at minimum, the following information: a description of the nature or basis of the claim or dispute; and the specific relief sought. If the dispute is not resolved within sixty (60) days after receipt of the written description of the dispute, you and Mirage agree to the further dispute resolution provisions below.
3. Class Arbitration And Collective Relief Waiver. YOU AND MIRAGE ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THIS SECTION 2, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM, UNLESS MIRAGE PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING. If there is a final judicial determination that this Section 2 is not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or Mirage from participating in a class-wide settlement of a claim.
4. Batch Arbitration. If twenty-five or more claimants represented by the same or similar counsel file demands for arbitration raising substantially similar Disputes within sixty days of each other, then you and Mirage agree that NAM will administer them in batches, unless there are less than fifty claimants in total or after batching, which will comprise a single batch. NAM will administer each batch as a single consolidated arbitration with one arbitrator, one set of arbitration fees, and one hearing held by videoconference or in a location decided by the arbitrator for each batch. If any part of this section is found to be invalid or unenforceable as to a particular claimant or batch, it will be severed and arbitrated in individual proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
5. Arbitration Rules. The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider, but in no event shall any arbitration be administered by the American Arbitration Association. Except as modified by Section 1 of this Schedule A, NAM will administer the arbitration in accordance with the “NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer” and the “Mass Filing Dispute Resolution Rules and Procedures” in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at [email protected].
6. Initiating Arbitration. Only after the parties have engaged in a good-faith effort to resolve the dispute in accordance with the informal dispute resolution procedure described in Section 17 of the Terms, and only if those efforts fail, then either party may initiate binding arbitration as the sole means to resolve claims using the procedures set forth in the applicable NAM rules. If you are initiating arbitration, a copy of the demand shall also be emailed to [email protected]. If Mirage is initiating arbitration, it will serve a copy of the demand to the email address associated with your User Account or the email that Mirage has on file for you. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the informal dispute resolution procedure contemplated by this Arbitration Agreement.
7. Arbitration Location And Procedure. If you are a resident of the United States, the arbitration will be conducted in the county where you reside, and if you are not a resident of the United States, the arbitration shall be conducted in New York, New York, United States of America, unless you and Mirage otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue. If the amount in controversy does not exceed $10,000 and neither party is seeking injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Mirage submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or either party seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise. Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Mirage (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
8. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with Section 16 (Limitation of Liability of) the Terms as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.
9. Fees. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
10. Right To Opt Out Of The Arbitration Agreement. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION AGREEMENT AS SET FORTH IN THIS SCHEDULE A, THEN: (1) you must notify Mirage in writing within thirty (30) days of the date that you first accessed or otherwise become subject to this Arbitration Agreement (or the effective date of any subsequent changes to this Schedule A); (2) your written notification must be mailed to 169 Madison Ave.; Ste. 11185 PMB 63183; New York, NY 10016 or emailed to [email protected]; and (3) your written notification must include (a) your name, (b) your address, and (c) a clear statement that you wish to opt out of this Arbitration Agreement. If you do not timely opt out of this Arbitration Agreement, the terms of this Arbitration Agreement shall be deemed mutually accepted by you and Mirage.
11. Changes To This Arbitration Agreement. Mirage will provide thirty (30) days’ notice of any changes affecting the substance of this Schedule A, including by posting the change on the Services, or providing any other notice in accordance with legal requirements. Any such changes will go into effect 30 days after Mirage provides this notice and shall apply to all claims not yet filed. If you reject any such changes by opting out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law. If Mirage changes this Schedule A after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out by providing notice as described in the Terms.
12. Venue And Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the parties shall be governed by the internal laws of the State of New York without regard to principles of conflicts of laws. For any dispute not subject to arbitration or under the jurisdiction of a small claims court, you and Mirage agree to submit to the personal and exclusive jurisdiction of any venue in the federal and state courts located in New York County, New York. You further agree to accept service of process by mail and hereby waive any and all jurisdictional and venue defenses otherwise available.
Miscellaneous.
1. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations or agreements (oral or written), between the parties regarding the subject matter hereof. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement.
2. Publicity. Licensee hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of Mirage’s marketing and promotional efforts.
3. Modification and Waiver. No change, consent or waiver under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. Notwithstanding the foregoing, Mirage may update this Agreement from time to time, in which case Licensee may be required to click through the modified Agreement. Continued use of the Mirage API after such acceptance constitutes acceptance to the modifications. If Licensee does not agree to the modified Agreement, Licensee’s sole remedy is to terminate use of the Mirage API.
4. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
5. Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the parties shall be governed by the internal laws of the State of New York without regard to principles of conflicts of laws. The parties agree to submit to the personal and exclusive jurisdiction of any venue in the federal and state courts located in New York County, New York.
6. Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Sections 5 and 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
7. Notices. All notices will be in writing. Mirage may provide Licensee notice using the registration information or the email address associated with Licensee’s account. Service will be deemed given on the date of receipt if delivered by email or on the date sent via courier if delivered by post. Mirage accepts service of process at this address: 169 Madison Ave.; Ste. 11185; New York, NY 10016.
8. Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
9. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Licensee without Mirage’s written consent. Any action or conduct in violation of the foregoing shall be void and without effect. Mirage expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
10. No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement, and it is Licensee and Mirage’s specific intent that nothing contained in this Agreement will give rise to any right or cause of action, contractual or otherwise, in or on behalf of any third party.
11. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.