DarkArt AI Studio Terms of Service

Last Updated Septemter 9, 2023

Introduction, Overview, and Your Agreement

These terms of service (and any other terms or information incorporated into them by reference) (collectively the "Terms") govern your access and use of these APIs (the "Services").

The Services are provided by DarkArt AI Studio ("DarkArt," we," or "us") to provide creative generative tools for our users to express their creativity to produce user-generated images from text prompts ("Content"). The Services use an artificial intelligence ("AI") tool to generate this Content. This use of AI is relatively new and still evolving. As a result, while we have taken — and continue to take — efforts to preclude your creation of extreme content, we cannot guarantee the suitability or appropriateness of the resulting images you generate. You are solely responsible for your use of the Services, including your text prompts, generation of Content, and the consequences of your Content Sharing (as defined below).

By using the Services, you are representing that you are of a legal age to enter into a binding contract in your legal jurisdiction and agreeing to these Terms. If you are using the Services on behalf of a business or other entity, you also represent that you have authority to bind them to these Terms. If you are not of legal age, do not agree to these Terms, or do not have that authority, you must not access or use the Services and any use would be wholly unauthorized and in violation of these Terms.

Your Information

For information concerning how and why we might collect, store, use, and/or share your personal information when you use the Services, including when you register to set up a membership account, please read and review our Privacy Policy.

Community Guidelines

As a valued member of our user community, the contribution of your near-boundless creativity plays an important part in creating a dream-worthy environment to produce incredible Content. We like to say "near-boundless" because your contributions must be safe, legal, and in accordance with these Terms. We want to be very clear about what we expect from you, and how we may respond if you do not meet our expectations. The Community Guidelines apply to your Content and use of the Services, including any Content Sharing (as defined below). Please review them carefully.

• The Services are provided based on models licensed under the CreativeML Open RAIL++-M License (available here: https://github.com/Stability-AI/stablediffusion/blob/main/LICENSE-MODEL).

• You will not use the Services in any manner described below in "Prohibited Uses."

• Before posting, publishing, or otherwise sharing Content with others (collectively, "Content Sharing"), you must give careful consideration to the potential physical, emotional, mental, financial, and reputational harm that it may have on others. Content that may be acceptable, harmless, satirical, artistic, or humorous to you might be perceived as harassing, threatening, intimidating, upsetting, disturbing, embarrassing, distressing, or hateful to someone else.

Any violation of these terms (including the Community Guidelines) may result in the suspension or termination by us, in our sole discretion, of your access to and use of the Services (including a permanent ban and you will forfeit any remaining credits and fees paid for the services). We MAY CHANGE the Services in our sole discretion. we will endeavor to provide reasonable notice of any suspension, termination, or change to you, but may do so without notice if in our sole judgment, we need to make changes to comply with law, protect or enforce legal rights, avoid or mitigate misuse of the Services or adverse legal or regulatory impacts on us, or otherwise to address or prevent an emergency. If we disable your account for a violation of the Terms or any other reason based on your conduct, you may not create another account without our express permission, which we may withhold in our sole discretion. if we let you create a new account, it does not imply that our prior decision to disable your account was wrong or without cause. suspension or TERMINATION of your access to and use of the services will not terminate DarkArt's rights to your content.

Without limiting the foregoing, you acknowledge and agree that DarkArt may preserve your text prompts and Content and may also disclose your text prompts and Content if required to do so by law or in DarkArt's good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of DarkArt, its officers, employees, directors, shareholders, licensors, service providers, agents, and the public.

Prohibited Uses

We want you to use the Services to express yourself and to develop Content that you find interesting, but not at the expense of the safety and well-being of others. Accordingly, you may not, or assist any other person to:

• Violate these Terms, the License, or other policies applicable to the Services;

• Include sensitive personal information (such as phone numbers, residential addresses, health information, social security numbers, driver's license numbers, or other account numbers) about yourself or any other person;

• Violate the privacy, publicity, or other rights of any third party;

• Further or promote criminal activity or enterprise or provide instructional information about illegal activities;

• Generate any Content or engage in Content Sharing that a reasonable person could find obscene, lewd, lascivious, offensive, pornographic, indecent, vulgar, prurient, excessively violent, or to be a glorification or promotion of violence or a celebration of the suffering or humiliation of any person or class of people (whether living or deceased) (including visible genitalia, bare breasts, fully-nude buttocks, depictions of suicide or explicit sexual activity, fetishistic content, bodily fluids, bestiality, or imagery that shows violent death or acts of torture);

• Generate Content or engage in any Content Sharing that has any risk or possibility of exploiting, harming, or endangering the health or well-being of children or other minors ("Children"), such as images of Children in sexualized costumes, poses, or a sexual fetishistic context, or which identifies, directly or indirectly, alleged victims of child sexual exploitation, or for the purpose of exploiting, harming or attempting to exploit or harm Children in any way;

• Generate Content or engage in any Content Sharing that may exploit any vulnerabilities, offend human dignity or may otherwise be defamatory, libelous, harassing, threatening, embarrassing, disparaging, distressing, hateful — racially, ethnically, or otherwise — to a person or class of people, or which may be discriminatory towards a person's or class of people's race, religion, color, age, ethnicity, national origin, disability, physical, or mental characteristics, sexual orientation, gender expression, gender identity, family status, medical or genetic condition, personality characteristics, or physical appearance, including through the material distortion of the behavior of any such person or class of people in a manner that causes or is likely to cause that person or class of people physical or psychological harm;

• Use the Services or any Content to stalk, harass, abuse, mock, ridicule, intimidate, disparage, defame, threaten, defraud, or otherwise mistreat or harm any person or class of people;

• Generate Content or engage in any Content Sharing that is intentionally misleading, false, or otherwise inappropriate or with the purpose of harming others, regardless of whether the Content or its dissemination is unlawful;

• Upload any materials that: (i) infringe any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under any contractual or fiduciary relationship;

• Upload any material, program, or software that contains any virus, worm, spyware, Trojan horse or other program or code designed to interrupt, destroy or limit the functionality of the Services, launching a denial of service attack, or in any other way attempting to interfere with the functioning and availability of the Services;

• Interfere with or disrupt the Services or servers or networks connected to the Services;

• Access or otherwise obtain any materials or information through any means not intentionally made available or provided for by DarkArt to you through the Services;

• Use the Services (a) for fully automated decision making that adversely impacts an individual's legal rights or otherwise creates or modifies a binding, enforceable obligation; (b) to provide medical advice or medical results interpretation; or (c) Generate Content or engage in Content Sharing used for administration of justice, law enforcement, immigration or asylum processes, such as predicting an individual will commit fraud/crime commitment (e.g. by text profiling, drawing causal relationships between assertions made in documents, indiscriminate and arbitrarily-targeted use);

• Use the Services in any way that violates any applicable national, federal, state, local or international law or regulation; or

• Attempt to do any of the above.

The Services may block certain text prompts and blur resulting Content if we find (in our sole judgment) the prompt or resulting image too graphic, offensive, insensitive, or hurtful, even in circumstances where you may not have had any ill intent or where the Content does not otherwise violate the prohibitions described above. We may also block text prompts or block or remove Content that we otherwise find objectionable or that we believe in our reasonable judgment may expose us or others to any harm or liability.

Ownership of Content; DarkArt Use of Content

As between you and DarkArt, you own the Content that you generate using the Services to the extent permitted by applicable law.

With respect to images you upload to the Services, you represent and warrant that you own all right, title, and interest in and to such images, including without limitation, all copyrights and rights of publicity contained therein. By uploading any images to the Services, you hereby grant DarkArt a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use such materials for any DarkArt-related purpose in any form, medium or technology now known or later developed. You are responsible for the Content, including for ensuring any Content Sharing does not violate any applicable law, intellectual property right of any third party, or these Terms.

You agree that DarkArt and our affiliates may use the Content to develop and improve the Services, including by storing your Content and associated metadata (i.e., image specifications, seeds, and text prompts) in a “history” section of your account so that you may browse and retrieve Content you previously generated using the Services.

Indemnity

You will indemnify, defend and hold harmless DarkArt and its affiliates, shareholders, officers, directors, employees, agents, and representatives from and against any and all claims, including all damages, judgments, costs and expenses (including, reasonable attorneys' fees) ("Claims"), arising out of and relating to (a) intellectual property infringement claims made against DarkArt concerning your inputs to the Services, (b) your use of the Services, including your access to, use of, or misuse of the Services, Content, Content Sharing, or (c) your violation of these Terms (including use of the Services in violation of these Terms).

Feedback

We always love to receive feedback, comments, ideas, proposals, and suggestions for improvements to the Services ("Feedback"). You acknowledge that any Feedback provided by you to DarkArt is not confidential and that DarkArt and its affiliates will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, without providing any compensation or other attribution or acknowledgment to you.

DMCA Copyright Infringement Notice

We have implemented the procedures described in the Digital Millennium Copyright Act of 1998 ("DMCA"), 17 U.S.C. § 512, regarding the reporting of alleged copyright infringement and the removal of or disabling access to infringing material. If you have a good faith belief that copyrighted material on the Services are being used in a way that infringes a copyright over which you are authorized to act, you may make a Notice of Infringing Material.

Before serving a Notice of Infringing Material, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. For example, if your Notice fails to comply with all requirements of sections 512(c)(3), your Notice may not be effective.

Termination of Repeat Infringers

We will terminate or disable your use of the Services in appropriate circumstances if you are deemed by us to be a repeat copyright infringer.

Notices must be sent to:

DarkArt AI Studio.

Email: darkart.studio.ai@gmail.com

Disclaimer

The Services are provided ON AN "as is" AND "AS AVAILABLE" BASIS. Except to the extent prohibited by law, we make no warranties (express, implied, statutory, or otherwise) with respect to the Services or content, and disclaim all warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, TITLE, AND non-infringement. DARKART MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

DarkArt reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that DarkArt will not be liable to you or to any third party for any modification or discontinuance of the Services, except as set forth in the "Limitation of Liability" section below.

You understand that we are not responsible for any activities or legal consequences of your use of the Services. Users are responsible for using the Services in compliance with all applicable laws and regulations of the jurisdictions in which such users are domiciled, reside, or are located at the time of such access or use, the jurisdictions into which such users direct any Content Sharing, as well as these Terms.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER DARKART NOR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, LICENSORS, SERVICE PROVIDERS, AND AGENTS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DARKART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICES OR ANY RELATED INFORMATION; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY CONTENT; (C) CONDUCT OF ANY THIRD PARTY (INCLUDING OTHER USERS) OF THE SERVICES; OR (D) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL DARKART'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE GREATER OF (I) ONE HUNDRED DOLLARS ($100) OR (II) THE PRICE YOU PAID FOR THE AMOUNT OF CREDITS CONSUMED BY THE SERVICE IN THE LAST TWELVE (12) MONTHS. IF YOU ARE MERELY DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to use of the Services or these Terms must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF CERTAIN CATEGORIES OF DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Dispute Resolution by Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

1. Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the "Arbitration Agreement." You and DarkArt agree that any and all disputes, claims, demands, or causes of action ("Claims") that have arisen or may arise between you and us, whether arising out of or relating to these Terms, the Services, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration before a neutral arbitrator, rather than in a court by a judge or jury, in accordance with the terms of this Arbitration Agreement, except that you or we may (but are not required to) assert individual Claims in small claims court, if such Claims are within the scope of such court's jurisdiction. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and we are each waiving the right to a trial by jury or to participate in a class action and that our respective rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

2. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

3. Pre-Arbitration Dispute Resolution. Before commencing any arbitration (or suit in small claims court, if available), each party agrees to send to the other party a written notice of Claim ("Notice"). The Notice to DarkArt shall be sent to darkart.studio.ai@gmail.com with a paper copy to: DarkArt AI Studio., 88, Notting Hill Gate, London, W11 4HP, UK. The Notice to you shall be sent to the email address we have on file for your DarkArt membership account (each, a "Notice Address"). The Notice must (i) describe the nature and basis of the Claim in sufficient detail to evaluate the merits of the claiming party's Claim and (ii) set forth the specific relief sought, including the amount of money (if any) that is demanded and the means by which the demanding party calculated the claimed amount. Both parties agree that they will attempt to resolve a Claim through an informal negotiation within sixty (60) calendar days from the date the Notice is received. If the Claim is not resolved within sixty (60) calendar days after the Notice is received, you or we may commence an arbitration proceeding. Each party agrees that state and federal courts in New York, New York, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.

4. Arbitration Procedures. The Federal Arbitration Act fully applies to the Arbitration Agreement. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") Consumer Arbitration Rules in effect at the time that such arbitration is initiated (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, http://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control. The arbitrator must also follow the provisions of these Terms as a court would. Except as set forth above, all issues are for the arbitrator to decide, including, but not limited to, threshold issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement and issues relating to (a) whether the terms of these Terms (or any aspect thereof) are enforceable, unconscionable, or illusory and (b) any defense to arbitration, including waiver, delay, laches, or estoppel. During arbitration proceedings, the amount of any settlement offer made by DarkArt or you shall not be disclosed to the arbitrator. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. While an arbitrator may award declaratory or injunctive relief, the arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party's Claim. The arbitrator's decision and judgment thereon will not have a precedent or collateral estoppel effect on any other Claim. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Any arbitration hearings will take place in New York, New York, at another mutually agreeable location or, if both parties agree, by telephone or video conference. Whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator or by a hearing will be determined in accordance with the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

1. Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a Claim in a local small claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis.

2. Cost of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If you are able to demonstrate to the arbitrator's satisfaction that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, we will pay your portion of such fees, subject to allocation in the arbitrator's award. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.

3. Confidentiality. Each of the parties shall maintain the strictly confidential nature of the arbitration, including all aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by law.

4. Opt Out. You may reject this Arbitration Agreement, in which case only a court may be used to resolve any Claim. To reject this provision, you must send us an opt-out notice (the "Opt Out") within thirty (30) days after you create a DarkArt membership account. The Opt Out must be sent to the DarkArt Notice Address. The Opt Out must include your name, phone number and the email address you used to sign up and use the Services. This is the only way of opting out of this Arbitration Agreement. Opting out will not affect any other aspect of these Terms, and will have no effect on any other or future agreements you may reach to arbitrate with us.

5. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than Paragraph 2) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief") is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Paragraph 2 above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to Claims for public injunctive relief. The remainder of these Terms will continue to apply.

Choice of Law

Any and all Claims shall be governed by the Federal Arbitration Act, and the internal substantive laws of the State of New York in all respects, without regard for the jurisdiction or forum in which the user is domiciled, resides, or located at the time of such access or use. Except as provided in the Arbitration Agreement, all Claims will be brought in the federal or state courts located in New York, New York, and you and DarkArt each unconditionally, voluntarily, and irrevocably consent to the exclusive personal jurisdiction and venue of those courts. You hereby irrevocably and unconditionally waive any right you may have to a trial by jury in respect of any action or proceeding arising out of or relating to thESE TERMS that is not subject to arbitration, as set forth above.

A printed version of these Terms and any other notice given in electronic form will be admissible in any arbitral, judicial, or administrative proceedings based upon or relating to these Terms and your use of the Services to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Waiver and Severability

If you do not comply with a portion of these Terms and we do not take action right away, this does not mean we are giving up any of our rights under these Terms. If any part of these Terms is determined to be invalid or unenforceable by a court of competent jurisdiction or arbitrator, the remainder of the Terms shall be enforced to the maximum extent permitted by law.

Entire Agreement; Construction

These Terms, including the License, contain the entire agreement between you and DarkArt regarding your use of the Services and, supersede any prior or contemporaneous agreements, communications, or understandings between you and DarkArt on that subject. In the event of any conflict between these Terms and the License, these Terms shall control.

Assignment and Delegation

You may not assign or delegate these Terms or any rights or obligations under these Terms. Any attempted or purported attempted assignment or delegation shall be null and void, and will automatically terminate your right to use the Services. We may assign or delegate these Terms or any rights or obligations under these Terms in connection with a merger, acquisition or sale of all or substantially all of our assets, or to any affiliate or as part of a corporate reorganization.

Notices

All notices to DarkArt under these Terms, unless otherwise specified shall be sent to darkart.studio.ai@gmail.com. We may notify you using the membership registration information you provided when you signed up to access the Services, including the email address associated with your use of the Services. Service of any notice will be deemed given on the date of receipt if delivered by email or on the date sent via courier if delivered by postal mail.

Changes to these Terms

We may change or modify these Terms by posting a revised version on the DarkArt website or by otherwise providing notice to you, and will state at the top of the revised Terms the date they were last revised. Changes will not apply retroactively and will become effective no earlier than fourteen (14) calendar days after they are posted, except for changes addressing new Service functions or changes made for legal reasons, which will be effective immediately. Your continued use of the Services after any change means you agree to the new Terms.