Cherry AI Terms of Use

Last Updated: May 1, 2026

Please read this Terms of Use agreement (these "Terms of Use") carefully. This website and its subdomains (collectively, the "Website"), the information on the Website, any company mobile application ("App"), and the services and resources available or enabled via the Website or the App (each a "Service" and collectively, the "Services"), are controlled by The Base Holding Company d/b/a Cherry AI ("Cherry", "we" or "our"). These Terms of Use, along with all supplemental terms that may be presented to you for your review and acceptance (collectively, the "Agreement"), govern your access to and use of the Services. By completing the registration process, browsing the Website, downloading or using the App, or otherwise accessing or using any of the Services, you represent that (a) you have read, understand, and agree to be bound by the Agreement, (b) you are at least eighteen (18) years old and of legal age to form a binding contract with Cherry, and (c) you have the authority to enter into the Agreement personally or on behalf of the legal entity identified during your Account registration process (as described in Section 2.1 (Registering Your Account)), and to bind that legal entity to the Agreement. The term "you" refers to the individual or such legal entity, as applicable. If you, or if applicable, such legal entity, do not agree to be bound by the Agreement, you, and if applicable, such legal entity, may not access or use any of the Services.

PLEASE BE AWARE THAT SECTION 13 (DISPUTE RESOLUTION) OF THE AGREEMENT BELOW CONTAINS PROVISIONS GOVERNING HOW ANY DISPUTES BETWEEN US WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (i) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

Please note that the Agreement is subject to change by Cherry in its sole discretion at any time. When changes are made, Cherry will make a copy of the updated Agreement available at the Website and update the "Last Updated" date at the top of these Terms of Use. If we make any material changes to the Agreement, we will provide notice of such material changes on the Website and attempt to notify you by sending an email to the email address provided during your Account registration (as described in Section 2.1 (Registering Your Account)). Any changes to the Agreement will be effective immediately for new users of the Services and will be effective for existing Registered Users (as defined in Section 2.1 (Registering Your Account)) upon the earlier of (1) thirty (30) days after the "Last Updated" date at the top of these Terms of Use; or (2) your consent to and acceptance of the updated Agreement if Cherry provides a mechanism for your immediate acceptance in a specified manner (such as a click-through acceptance), which Cherry may require before further use of the Services is permitted. If you do not agree to the updated Agreement, you must stop using all Services upon the effective date of the updated Agreement. Otherwise, your continued use of any portion of the Services after the effective date of the updated Agreement constitutes your acceptance of the updated Agreement. Please regularly check the Website to view the then-current Agreement. You agree that Cherry's continued provision of the Services is adequate consideration for the changes in the updated Agreement.

1. USE OF THE SERVICES

About Cherry

The Services revolve around a platform designed to facilitate the creation and exploration of AI models and AI-generated media. Users of the Services ("Users") may be able to generate images ("Generated Images") based on such Users' input ("Prompts") through use of the Services, as well as upload, share, and discover custom machine learning models ("Models") to generate art or media.

Access to the Services

Subject to your compliance with the Agreement, Cherry grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services for lawful purposes.

App License

Subject to your compliance with the Agreement, Cherry grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install, and use a copy of the App and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you will only use such App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple's proprietary operating system); and (b) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this Section 1.3 (App License), with respect to any App accessed through or downloaded from the Google Play store (a "Google Play Sourced Application"), you may have additional license rights with respect to use of such Google Play Sourced Application on a shared basis within your designated family group.

Certain Restrictions

The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit any portion of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout, or form); (c) you shall not use any metatags or other "hidden text" using Cherry's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to "scrape" or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Cherry, its suppliers, and its service providers reserve all rights not granted in the Agreement.

Updates

You understand that the Services are evolving. As a result, Cherry may require you to accept updates to the App that you have installed on your mobile device. You acknowledge and agree that Cherry may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.

Cherry Communications

By entering into the Agreement or using the Services, you agree to receive communications from us, including via text message, calls, email, and push notification. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us may include but are not limited to operational communications concerning your Account (as defined in Section 2.1 (Registering Your Account)) or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Cherry and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT "END" TO THE NUMBER OR SHORT CODE FROM WHICH YOU RECEIVED SUCH CALLS OR TEXTS FROM THE MOBILE DEVICE RECEIVING SUCH MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD "STOPALL" TO THE NUMBER OR SHORT CODE FROM WHICH YOU RECEIVED SUCH CALLS OR TEXTS FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICES.

2. REGISTRATION

Registering Your Account

In order to access certain features of the Services, you may be required to become a Registered User. For purposes of the Agreement, a "Registered User" is a User who has registered an account with Cherry through the Services ("Account"), or has an account with the provider of the App for such User's mobile device.

Registration Data

In registering an Account, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence, or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by any other persons, including minors, and you will accept full responsibility for any such unauthorized use. You may not share your Account login or password with anyone, and you agree to (1) notify Cherry immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Cherry has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current, or incomplete, Cherry has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Cherry reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights. You agree not to create an Account or use the Services if you have been previously removed by Cherry, or if you have been previously banned from any of the Services.

Your Account

Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Cherry.

3. RESPONSIBILITY FOR CONTENT

Types of Content

You acknowledge that all Models, Prompts, Generated Images, information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and other materials accessible through the Services (collectively, "Content") is the sole responsibility of the party from whom such Content originated. This means that you, and not Cherry, are entirely responsible for all Content that you upload, post, transmit, or otherwise make available through the Services ("Your Content"), and that you and other Users, and not Cherry, are similarly responsible for all Content that you and they make available through the Services ("User Content").

No Obligation to Pre-Screen Content

You acknowledge that Cherry has no obligation to pre-screen User Content, although Cherry reserves the right in its sole discretion to pre-screen or refuse any User Content. In the event that Cherry pre-screens or refuses any of Your Content, you acknowledge that Cherry will do so for Cherry's benefit, not yours.

Content Moderation

Cherry does not control and does not have any obligation to monitor: (a) User Content; (b) any Content made available by third parties; or (c) the use of the Service by its Users. Notwithstanding the foregoing, by entering into the Agreement, you hereby provide your irrevocable consent to Cherry's monitoring of Your Content. If at any time Cherry chooses to monitor or moderate any Content, Cherry nevertheless assumes no responsibility or liability for Content or any loss or damage incurred as a result of the use of Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.

Cherry's Right to Remove Content

Cherry shall have the right to remove any of Your Content that violates the Agreement or is otherwise objectionable. Without limiting the foregoing, Cherry reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates the Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users or the public, or could create liability for Cherry; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (d) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.

Prohibited Content

Cherry may block, filter, mute, remove, or disable access to any User Content uploaded to or transmitted through the Service without any liability to the User who posted such User Content to the Services or to any other Users. The following User Content is expressly prohibited:

Content depicting or intended to depict minors (under eighteen (18) years of age) in a mature context;

Content promoting illegal or violent activities, including, but not limited to: child abuse or exploitation; rape or domestic abuse; illegal substances or product sales requiring permits/licenses (e.g., pharmaceuticals, narcotics, firearms); fraud, deception, or false impersonation; brutal fights, graphic injuries, or human death; graphic violence or bestiality; or

Content falsely labeled as having been created or endorsed by another individual, or impersonates another individual without such individual's express consent.

Content that infringes, misappropriates, or otherwise violates any third-party intellectual property rights, including copyrighted text, images, designs, or other materials used without the rights holder's permission.

Any Content that violates one of the terms above but has been self-censored using black bars, blurring, or other means may also be removed by Cherry in its sole discretion.

Reporting

You are encouraged to report any inappropriate User Content that violates the Agreement or Cherry's published policies. Reports can be submitted through the "Report" feature within the App, and should include relevant information to assist in the investigation. Cherry reserves the right to suspend or terminate the Accounts of Registered Users who are found to be in violation of the Agreement or Cherry's published policies.

Storage

Cherry has no obligation to store any of Your Content. Cherry has no responsibility or liability for the deletion or accuracy of any User Content, including Your Content; the failure to store, transmit, or receive transmission of any User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. If such Content visibility restrictions are available, you are solely responsible for choosing the appropriate level of access to Your Content. If you do not so choose, the Services may default to the most permissive setting. You agree that Cherry retains the right to create reasonable limits on Cherry's use and storage of User Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by Cherry in its sole discretion.

4. USER CONDUCT

Acceptable Use Policy

As a condition of use, you agree not to use any of the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action; or (b) make available any Content on or through the Services that: (i) infringes, misappropriates, or otherwise violates any intellectual property right, right of publicity, right of privacy, or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or obscene; (iii) constitutes unauthorized or unsolicited advertising, junk, or bulk email; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Cherry's prior written consent; (v) impersonates any person or entity, including any employee or representative of Cherry; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other User, host or network, including by means of overloading, "flooding," "spamming," "mail bombing," or "crashing" the Services.

Interactions With Other Users

User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact through or in connection with the Services; provided, however, that Cherry reserves the right, but has no obligation, to intercede in such disputes. You agree that Cherry will not be responsible for any liability incurred as the result of such interactions.

Content Provided by Other Users. The Services may contain User Content provided by other Registered Users. Cherry is not responsible for and does not control User Content. Cherry has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.

5. OWNERSHIP

Services

Except with respect to Your Content and other User Content, you agree that Cherry and its suppliers own all rights, title, and interest in the Services (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and software). You agree not to remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying any Services.

Trademarks

Cherry's name and all related stylizations, graphics, logos, service marks, and trade names used on or in connection with any Services are the trademarks of Cherry and may not be used without permission in connection with your, or any third-party, products, or services. Third-party trademarks, service marks, and trade names that may appear on or in the Services are the property of their respective owners.

Your Content

Cherry does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services. You represent and warrant that you own or otherwise control all of the rights to Your Content as described in this Agreement including, without limitation, all the rights necessary for you to provide, post, upload, input or submit such Content. Without limiting the foregoing, by providing Your Content via the Services, you represent and warrant to Cherry that:

you are the creator and owner of Your Content, or have the necessary licenses, rights, consents, and permissions to authorize Cherry and Users in the manner contemplated by Cherry, the Services, and the Agreement;

Your Content, and the posting or other use of Your Content as contemplated by the Agreement, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (iii) cause Cherry to violate any law or regulation or require us or any Users to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and

Your Content could not be deemed by a reasonable person to be harassing, threatening, hateful, or otherwise inappropriate.

License to Your Content

Subject to any applicable Account settings that you select, you grant Cherry a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any "public" area of the Services. You agree that you, not Cherry, are responsible for all of Your Content. You may not post a photograph of another person without that person's permission.

Username

Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Services, you hereby expressly permit Cherry to identify you by your username (which may be a pseudonym) as the contributor of Your Content.

Feedback

You agree that submission of any ideas, suggestions, documents, and/or proposals to Cherry through its suggestion, feedback, wiki, forum, or similar pages ("Feedback") is at your own risk and that Cherry has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Cherry a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Cherry's business.

6. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

It is Cherry's policy to terminate Account privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Cherry by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for Cherry's Copyright Agent for notice of claims of copyright infringement is as follows: Copyright Manager, The Base Holding Company, 887 Oak Grove Ave Ste 201, Menlo Park, CA 94025. Phone: (203) 570-2236. Email: dmca@cherry.ai. Registration Number: DMCA-1040840.

7. THIRD-PARTY SERVICES

Third-Party Services and Linked Websites

Cherry may provide tools through the Service that enable you to export information, including User Content, to third-party services, including through features that allow you to link your Account on the Service with an account on the third-party service, or through our implementation of third-party buttons (such as "like" or "share" buttons); provided, however, that you will not use the export functionality in violation of any license terms associated with such User Content. By using one of these tools, you hereby authorize Cherry to transfer that information to the applicable third-party service. Third-party services are not under Cherry's control, and, to the fullest extent permitted by law, Cherry is not responsible for any third-party service's use of your exported information. Once Content sharing occurs, Cherry will have no control over the information that has been shared. When you click on a link to a third-party service, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Linked websites are not under Cherry's control, and Cherry is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Cherry provides these third-party services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such third-party services, or any product or service provided in connection therewith. You use all links in and to such third-party services at your own risk.

App Stores

You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (each, an "App Store"). You acknowledge that the Agreement is between you and Cherry and not with the App Store. Cherry, not the App Store, is solely responsible for the Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Service, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.

Accessing and Downloading the App from iTunes

The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

You acknowledge and agree that (i) the Agreement is concluded between you and Cherry only, and not Apple, and (ii) Cherry, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Cherry and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Cherry.

You and Cherry acknowledge that, as between Cherry and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

You and Cherry acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Cherry and Apple, Cherry, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.

You and Cherry acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

8. USAGE FEES AND SUBSCRIPTION BILLING

Subscription Plans

If you sign up for a paid subscription tier or feature of the Services (a "Subscription"), you will be charged the applicable fees as set forth in the Cherry Pricing Table (the "Pricing Table") based on the plan you select. By subscribing, you authorize Cherry (or, where applicable, Apple or Google through their respective billing systems) to charge your designated payment method on a recurring basis in advance of each billing period.

Automatic Renewal; Recurring Charges

YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH BILLING PERIOD (E.G., WEEKLY, MONTHLY, OR ANNUALLY) UNLESS YOU CANCEL BEFORE THE RENEWAL DATE. AT THE TIME OF EACH RENEWAL, YOUR PAYMENT METHOD WILL BE CHARGED THE THEN-CURRENT SUBSCRIPTION FEE FOR YOUR PLAN. BY SUBSCRIBING, YOU ACKNOWLEDGE AND AGREE TO THESE RECURRING CHARGES. WHERE REQUIRED BY APPLICABLE LAW, CHERRY WILL PROVIDE ADVANCE NOTICE OF UPCOMING RENEWALS FOR SUBSCRIPTIONS WITH A BILLING PERIOD GREATER THAN ONE MONTH.

Billing Timing

The timing of billing depends on your payment channel: (a) Apple App Store: your payment method is charged no earlier than twenty-four (24) hours before the start of each new billing period; (b) Google Play: your payment method is charged at the beginning of each billing period, and an authorization hold may be placed on your payment method up to forty-eight (48) hours prior to the start of each renewal period; (c) Direct (web) purchases: your payment method is charged at the start of each billing period by our payment processor.

Free Trials

If you sign up for a free trial, you will not be charged during the trial period. At the end of the trial period, your Subscription will automatically begin and your payment method will be charged the applicable Subscription fee unless you cancel before the trial ends. To avoid being charged, you must cancel before the trial period expires. Canceling during a trial takes effect immediately and you will lose access to any trial benefits at the end of the trial period, unless otherwise specified.

Cancellation

You may cancel your Subscription at any time using the following methods, depending on how you subscribed: (a) Apple App Store subscriptions: via Settings > [Your Name] > Subscriptions on your Apple device; (b) Google Play subscriptions: via the Subscriptions section of the Google Play app or play.google.com; (c) Direct (web) subscriptions: via your Account settings on the Cherry website, or by contacting us at support@cherry.ai. Cancellation takes effect at the end of your current billing period. You will retain access to your Subscription benefits through the end of the paid period, after which your account will revert to the free tier or be deactivated as applicable. Uninstalling the App does not cancel your Subscription.

No Refunds; No Proration

All Subscription fees are non-refundable. We do not offer prorated refunds for unused portions of a billing period, except: (a) where required by applicable law; (b) where a verifiable technical failure of the Services prevented you from receiving the purchased service, reported to us within seven (7) days of the charge; or (c) in the case of duplicate charges. Refund requests must be submitted to support@cherry.ai within fourteen (14) days of the original charge. Cherry may, in its sole discretion, issue credits or refunds in other circumstances.

Failed Payments

If your payment fails, Cherry and/or your payment platform will attempt to recover the payment as follows: (a) Apple App Store: Apple may provide a billing grace period during which you retain access while Apple attempts to collect payment; if payment is not recovered within the grace period, your Subscription will be suspended; (b) Google Play: Google may provide a grace period followed by an account hold of up to sixty (60) days during which Google will periodically retry payment; if the payment issue is not resolved before the end of the account hold period, your Subscription will be automatically canceled; (c) Direct (web) purchases: our payment processor will automatically retry your payment method; if all attempts fail, your Subscription will be canceled. During any grace period or account hold, you may update your payment method through the relevant platform to restore your Subscription.

Chargebacks

If you initiate a chargeback or payment dispute with your payment provider instead of contacting Cherry directly, Cherry reserves the right to immediately suspend or terminate your Account and revoke access to any credits, Content, or Services associated with the disputed transaction. We encourage you to reach out to our support team before initiating a chargeback so that we can attempt to resolve any billing concerns.

Upgrades and Downgrades

You may change your Subscription plan at any time. Plan changes take effect at the start of your next billing period, unless otherwise specified at the time of the change. No prorated credit is provided for the remainder of any current billing period upon a downgrade.

Price Changes

Cherry reserves the right to change Subscription pricing at any time. We will provide you with at least thirty (30) days' prior notice of any price increase, via email to the address associated with your Account or through notice within the Services. If you do not wish to continue your Subscription at the new price, you must cancel before your next renewal date. Your continued use of the Subscription after the price change takes effect constitutes your acceptance of the new price. If your Subscription is billed through Apple or Google, their respective price change and consent processes will also apply.

Promotional Credits

Cherry may offer promotional credits or free trial periods from time to time at its sole discretion. Promotional credits have no cash value, are non-transferable, non-refundable, and will be applied against applicable Subscription fees. Promotional terms are subject to change or termination at any time.

Modifications

Cherry reserves the right to modify this billing and subscription policy at any time. Any changes will be effective upon posting of the updated Terms of Use. Your continued use of the Services after such changes constitutes your acceptance of the updated terms.

9. TERM AND TERMINATION

Term

The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.

Prior Use

Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.

Termination of Services by Cherry

If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Cherry is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Cherry has the right to, immediately and without notice, suspend, or terminate any Services provided to you. You agree that all terminations for cause shall be made in Cherry's sole discretion and that Cherry shall not be liable to you or any third party for any termination of your Account.

Termination of Services by You

If you want to terminate the Services provided by Cherry, you may do so by: (a) notifying Cherry at any time; and (b) closing your Account for all of the Services that you use through the "Delete Account" functionality within the App. You may also provide notice via our support email address at support@cherry.ai.

Effect of Termination

Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases; provided that Cherry is not obligated to delete or remove any of Your Content upon termination. Cherry will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

No Subsequent Registration

If your registration(s) with, or ability to access, the Services or any other Cherry community, is discontinued by Cherry due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Cherry community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Cherry reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

10. INDEMNIFICATION

You agree to indemnify and hold Cherry, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a "Cherry Party" and collectively, the "Cherry Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of any Service in violation of the Agreement; (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules, or regulations. Cherry reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Cherry in asserting any available defenses. This provision does not require you to indemnify any of the Cherry Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this Section 10 (Indemnification) will survive any termination of your Account, the Agreement and/or your access to the Services.

11. DISCLAIMER OF WARRANTIES AND CONDITIONS

As Is

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. CHERRY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.

CHERRY MAKES NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CHERRY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

FROM TIME TO TIME, CHERRY MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CHERRY'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

No Liability for Conduct of Third Parties

YOU ACKNOWLEDGE AND AGREE THAT CHERRY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CHERRY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

Third-Party Materials

As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Cherry to monitor such materials and that you access these materials at your own risk. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components ("Third-Party Components"). Although the Service is provided to you subject to the Agreement, nothing in the Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.

12. LIMITATION OF LIABILITY

Disclaimer of Certain Damages

YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE CHERRY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT CHERRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A CHERRY PARTY FOR (a) DEATH OR PERSONAL INJURY CAUSED BY A CHERRY PARTY'S NEGLIGENCE; OR FOR (b) ANY INJURY CAUSED BY A CHERRY PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.

Cap on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, THE CHERRY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO CHERRY BY YOU DURING THE THREE (3)-MONTH PERIOD PRIOR TO THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A CHERRY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A CHERRY PARTY'S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A CHERRY PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.

User Content

EXCEPT FOR CHERRY'S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN CHERRY'S PRIVACY POLICY, CHERRY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

Exclusion of Damages

CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

Basis of the Bargain

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CHERRY AND YOU.

13. ARBITRATION AGREEMENT

Please read this section carefully. It is part of your contract with Cherry and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION.

Applicability of Arbitration Agreement

Subject to the terms of this Arbitration Agreement, you and Cherry agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Website, any communications you receive from Cherry, or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a "Dispute") will be resolved by binding arbitration, rather than in court, except that: (a) you and Cherry may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Cherry may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, "Dispute" will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.

Informal Dispute Resolution

There might be instances when a Dispute arises between you and Cherry. If that occurs, Cherry is committed to working with you to reach a reasonable resolution. You and Cherry agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome. You and Cherry therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement ("Informal Dispute Resolution Conference"). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference ("Notice"), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Cherry that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@cherry.ai or regular mail to our offices located at 887 Oak Grove Ave Ste 201, Menlo Park, CA 94025. The Notice must include: (a) your name, telephone number, mailing address, and email address (if you have one); (b) the name, telephone number, mailing address and email address of your counsel, if any; and (c) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple Users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party's Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

Waiver of Jury Trial

YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Cherry are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

Waiver of Class and Other Non-Individualized Relief

YOU AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 13.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 13.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Cherry agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in San Francisco, California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Cherry from participating in a class-wide settlement of claims.

Rules and Forum

The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Cherry agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association ("AAA"), in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the "Request"). The Request must include: (a) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States Dollars; (d) a statement certifying completion of the Informal Dispute Resolution process as described above; and (e) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel's name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and Cherry otherwise agree, or the Batch Arbitration process discussed in Section 13.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.

You and Cherry agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties' attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

Arbitrator

The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 13.9 is triggered, the AAA will appoint the arbitrator for each batch.

Authority of Arbitrator

The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 13.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 13.4 is unenforceable, illegal, void or voidable, or that Section 13.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 13.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 13.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

Attorneys' Fees and Costs

The parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Cherry need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys' fees and costs.

Batch Arbitration

To increase the efficiency of administration and resolution of arbitrations, you and Cherry agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Cherry by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of one hundred (100) Requests per batch (plus, to the extent there are less than one hundred (100) Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award ("Batch Arbitration").

All parties agree that Requests are of a "substantially similar nature" if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process ("Administrative Arbitrator"). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator's fees shall be paid by Cherry.

You and Cherry agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration 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.

30-Day Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 887 Oak Grove Ave Ste 201, Menlo Park, CA 94025, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address provided to Cherry (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

Invalidity, Expiration

Except as provided in Section 13.4 (Waiver of Class and Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Cherry as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

Modification

Notwithstanding any provision in this Agreement to the contrary, we agree that if Cherry makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Cherry at 887 Oak Grove Ave Ste 201, Menlo Park, CA 94025, your continued use of the Website, including the acceptance of products and services offered on the Website following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Website, any communications you receive, any products sold or distributed through the Website or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Cherry will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

14. GENERAL PROVISIONS

Governing Law

Any dispute, claim or request for relief relating in any way to your use of the Services will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.

Exclusive Venue

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Cherry agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.

Electronic Communications

The communications between you and Cherry may take place via electronic means, whether you visit the Services or send Cherry emails, or whether Cherry posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Cherry in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Cherry provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.

Assignment

The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Cherry's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

Force Majeure

Cherry shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

Questions, Complaints, Claims

If you have any questions, complaints or claims with respect to the Services, please contact us at: support@cherry.ai. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

Choice of Language

It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.

Notice

Where Cherry requires that you provide an email address, you are responsible for providing Cherry with your most current email address. In the event that the last email address you provided to Cherry is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, Cherry's dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Cherry at the following address: 887 Oak Grove Ave Ste 201, Menlo Park, CA 94025. Such notice shall be deemed given when received by Cherry by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

Waiver

Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Severability

If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

Export Control

You may not use, export, import, or transfer any Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Cherry are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Cherry products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

Consumer Complaints

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

Entire Agreement

The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

15. INTERNATIONAL USERS

The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Cherry intends to announce such Services or Content in your country. The Services are controlled and offered by Cherry from its facilities in the United States of America. Cherry makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law. The following provisions shall apply only if you are located in the countries listed below.

United Kingdom

A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.

Germany

Notwithstanding anything to the contrary in Section 12 (Limitation of Liability), Cherry is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).