Alpha Build Terms of Service

Alpha Terms of Service

Effective as of December 10, 2024

This document, the Alpha Terms of Service, is an agreement between DeepCreative Inc. (“DeepCreative”) and you or the person, organization, company, governmental agency, or other entity that you represent (collectively, “Entity”) and governs your use of and access to Alpha App (defined below) developed by DeepCreative. By checking the "I Accept" box or installing, accessing, or otherwise using the Alpha App (defined below), you signify that you (a) are at least 18 years old or meet the minimum age of consent in your state of residence, and (b) have read and acknowledge our Alpha Test Privacy Statement; (c ); (d) have read, understood, and agree to be bound by the terms of the Alpha Terms of Service (the “Agreement”). SECTION 10 CONTAINS PROVISIONS GOVERNING DISPUTE RESOLUTION. AMONG OTHER THINGS, IT REQUIRES THAT ALL DISPUTES (WITH LIMITED EXCEPTIONS) BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 10 ALSO INCLUDES A JURY TRIAL AND CLASS ACTION WAIVER WHICH MEANS THAT IN THE EVENT OF A DISPUTE, YOU ARE WAIVING YOUR RIGHTS TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS. If you do not agree with all of the terms and conditions of this Agreement, do not access, install, or use the Alpha App. In this Agreement the words "you" and "your" refer to you, a user of the Alpha App. If you are accessing the Alpha App on behalf of another Entity, you represent and warrant that you are authorized to do so and have the authority to bind such Entity to this Agreement, in which case “you” or “your” shall refer to you, personally, and each such Entity. This Agreement refers to “we,” “us,” and “our,” all of which are references to DeepCreative.

ALPHA TEST. DeepCreative has developed a proprietary software application, which includes an application in compiled code form (the “Alpha App”), as well as all source and object code, executable files, algorithms, methods, processes, techniques, functionality, design, architecture, trade secrets, know-how, documentation, all related information, and white papers, and services derived therefrom, and all improvements, modifications or enhancements thereto (collectively, the “Software"). The Alpha App is in a pre-release state or trial form which means it is not yet suitable for public deployment or production use. This is a closed alpha test, meaning that access to test the Alpha App is being offered to you on an invitation only, confidential basis (the “Alpha Test”). By accessing or using the Alpha App, you acknowledge and understand that (a) there is no guarantee of the availability of the Alpha App, we may discontinue, change, or limit the availability of the Software at any time, without notice; (b) we shall have no liability for any losses or damages arising from or related to your use of the Alpha App; (c) your data or content may be affected by using the Alpha App such that you may not be able to revert back to a prior non-alpha version of the same or similar feature and you may not be able to return or restore data created within the Alpha Test back to the prior non Alpha Test version. No advice or information, whether oral or written, obtained from DeepCreative or through the Alpha App will create any warranty or representation not expressly made in this Agreement. DeepCreative is not responsible for your use of or reliance upon the Alpha App.

1.1 Alpha Test Period and Termination. The “Test Period” means the period of the time from December 10, 2024 through December 16, 2024, unless earlier terminated or extended by DeepCreative in its sole discretion, with or without notice to you. Upon expiration or earlier termination of the Test Period, all rights and obligations under this Agreement will immediately terminate except for such terms and conditions that by their nature should survive, including, without limitation, Sections 2 (DC Intellectual Property), 6 (Confidentiality and Non Disclosure), 7 (Disclaimers of Warranties), 8 (Limitation of Liability), 9 (Indemnification), 10 (Arbitration, Class Action Waiver, Jury Trial Waiver), and 12 (General Terms).

1.2 Using the Software. Your use of the Alpha App is subject to the grant of rights (Section 4) and Limitations (Section 5) below. In order to use the Alpha App, you are responsible for providing an iOS mobile phone with the latest version of iOS installed, a wireless service plan, software, Internet or network connections and/or other equipment or services that you need to download, install and use the Alpha App. DeepCreative does not warrant or guarantee that the Alpha App can be accessed or compatible with your mobile device or with any particular service plan. As part of the features of the Alpha App, you may receive push notifications, messages, picture messages, alerts, or other types of messages in connection with the Alpha App (“Push Messages”). You acknowledge that, when you use the Alpha App, your wireless carrier may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). You are solely responsible for any fees, cost or expense that you incur to download, install and/or use the Alpha App on your mobile phone, including for your receipt of Push Messages from DeepCreative. Additionally, you will need to set appropriate permissions on your mobile device for uploading documents and photos from your mobile phone if you desire to include them as Inputs (defined below at Section 4.1.)

1.3 Service Limits. DeepCreative may set and enforce limits on Inputs you upload, with such limits being set in its sole discretion. You will not attempt to circumvent these limitations. If you would like to use the Alpha App beyond these limits, you must obtain our express written consent and DeepCreative may decline such request, or condition additional allocations, subject to your agreement to additional charges and terms for such use.

1.4 Your Obligations. In using or accessing the Alpha App, you shall: (a) comply with the terms of this Agreement, our Acceptable Use Policy, and all applicable laws, rules, and regulations; (b) keep your account secure and promptly notify us if the account you use to access the Alpha App has been compromised; (c) report software bugs, errors, and malfunctions, if any, you encounter to DeepCreative; (d) report any Outputs that are inaccurate, harmful, or biased; (e) provide Feedback to DeepCreative about the Alpha App, its functionality, and performance, which may involve completing surveys or questionnaires provided to you by DeepCreative, as may be reasonably requested; (f) keep all information about the Software confidential which means, by way of example only, and not limitation, that you shall not take screenshots or recordings of the Alpha App (unless to provide them to us, for example, to describe a software bug) and you shall not post reviews or share about the Software on social media or or otherwise.

1.5 Feedback. If you provide Feedback, you shall not submit any information or ideas to us that you consider to be proprietary or confidential: we will treat any Feedback that we receive as non-confidential and non-proprietary. By submitting Feedback to us, you hereby assign to DeepCreative all rights in and to such Feedback throughout the universe, and DeepCreative shall have the right (but not the obligation) to use and fully exploit such Feedback, in its sole discretion, without attribution, obligation, or payment to you. You acknowledge that by accepting your Feedback, DeepCreative does not waive its rights to use similar or related ideas that were obtained by sources other than you, previously known to us, or developed by our employees. “Feedback” means suggestions for improving the Software, bug reports you submit, ratings, completed surveys, and any other information about the Software that you provide to us.

1.6 Upgrades and Updates. DeepCreative may monitor your use of the Alpha App to make improvements to the Software and for compliance with this Agreement. DeepCreative may issue upgraded versions of the Alpha App and may provide you with either manual or automatic electronic updates to the Alpha App on your mobile device, without advance notice to you. You consent to such upgrades and electronic updates. Additionally you understand and acknowledge that the terms and conditions of this Agreement will apply to all such upgrades and updates.

1.7 Account Security. You are responsible for all activities occurring under your account. You are responsible for maintaining the security of your account and may not share your access credentials with any other person without DeepCreative’s prior written authorization. You represent and warrant that you will not create (a) any fake account, (b) more than one (1) account per individual user or (c) an account on behalf of another individual or entity without such individual’s or entity’s prior written authorization.

1.8 Usage Data. As a part of the Alpha Test, we will collect, or you may provide to us, technical, usage, diagnostic, and related information about your mobile device, systems, IP address and software, including error reports and performance metrics (collectively, “Usage Data”). Our use of data, including Usage Data, that is considered personal information, is governed by the Alpha Test Privacy Statement. Usage Data is solely and exclusively owned by us and if and to the extent that any rights of ownership in the Usage Data have vested in you, by using the Alpha App you assign to us all rights (including intellectual property rights), title, and interest in and to the Usage Data. We may use and process Usage Data, in whole or in part, for any lawful purpose which may include, but not be limited to the following: (a) to provide and maintain the Software; (b) to monitor your usage of the Alpha App; (c) for research and analytics, such as, by way of example only, and not limitation, data analysis, and to identify usage trends and/or customer research; (d) solely in de-identified or aggregated form, to share analytics and other derived Usage Data with third parties; and (e) to develop and improve our products and services. To help improve the quality of our products, human reviewers may review and annotate your Inputs and Outputs, so do not submit confidential, sensitive, or personal information as a part of any Input.

DC INTELLECTUAL PROPERTY. We own and will continue to own all right, title, and interest, in and to the Software and the DC Intellectual Property. In this Agreement, “DC Intellectual Property” means all of the DeepCreative (a) copyrights and other rights associated with works of authorship, trade secrets and other confidential information, (b) patents, patent disclosures, and all rights in inventions (whether patentable or not), (c) trademarks, trade names, Internet domain names, and registrations and applications for the registration thereof together with all the goodwill associated therewith, (d) all other intellectual property and industrial property rights of every kind and nature protecting intangible proprietary property regardless of whether those rights arise under the laws of the United States, or any other state, country or jurisdiction, throughout the universe, and however designated, whether arising by operation of law, contract, license, or otherwise, and (e) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof, as (a) – (e) may exist now or hereafter come into effect. The trademarks, logos, product and service names,tag lines, slogans that may appear in or may be visible through your use of the Alpha App are the property of DeepCreative and their respective owners. Except as may be explicitly provided herein, nothing in this Agreement will be deemed to create a license in or to the DC Intellectual Property. Use of the DC Intellectual Property for any purpose not expressly permitted under this Agreement is prohibited.

USER CONTENT.

3.1 User Content. You (or your licensors) will own all data and other materials that are received, directly or indirectly by you or on your behalf including any prompts, queries or commands, data, images, and other content (collectively, “Input(s)”) you introduce into the Software. When using the Alpha App, your Input(s) may be subject to specific format or size specifications and you acknowledge that you may not be able to submit your Input if you do not comply with such specifications. If you do not comply with such requirements, it will impact the Software’s ability to perform as intended. By uploading your Input(s) to the Alpha App, you represent and warrant that (a) you have all rights, licenses, permissions, approvals and consents that are necessary to provide Inputs and for the Software to process the Inputs pursuant to this Agreement, including without limitation, written consents from every identifiable natural person, living or dead, referred to or mentioned in the Input, in addition to the right to use such person’s name, image, likeness, voice, photograph of such person, (b) that all such identifiable and natural persons have released you from all liability that may arise in connection with the use set forth in (a), (c) that your submission of Inputs to us will not violate this Agreement, the Acceptable Use Policy, or any laws, rules, regulations, or rights of any third party, (d) we will not be liable to any third party for payment of any royalties, residuals, fees under collective bargaining agreements, or other amounts if we use your User Content (defined below) and exercise the rights you have granted to us under Section 4.3; (e) your Inputs do not include hate speech, nudity, threats, illegal content, spam or unsolicited messages, any content that is discriminatory, excessively violent, abusive, tortious, libelous, defamatory, or otherwise objectionable, (f) your Inputs do not violate the confidentiality of any third party; and (g) your Inputs do not contain data or other material that a governmental body would consider classified or sensitive..

The Software is designed to provide results in response to your Inputs, which may include Flash applications (“Flash Apps”) created from your Input commands (all such results are collectively referred to as “Output(s)”) (Inputs and Outputs, including Flash Apps, are collectively, “User Content”). As between you and us, you own the Output(s) to the extent permitted by applicable law. Subject to your compliance with this Agreement, we assign or transfer to you all right, title, and interest, (if any), in and to such Outputs. You shall be solely responsible and liable for the Outputs resulting from your Inputs, including that they do not violate applicable law, the rights of any third party, or this Agreement.

3.2 Sharing. You may share your User Content with others using the Alpha App’s chat features. If shared in a chat, your User Content will be available to others in the chat thread until the chat is deleted. By sharing User Content, you authorize us to deliver such User Content to such third parties.

3.3 Similarity. The Software may produce similar, or even the same, output for you as for other users due to how generative artificial intelligence tools operate. If another user receives a similar or the same output as you have received, as between DeepCreative and such user, the assignment in Section 4.1 will not apply to you and the other user will own the output(s) resulting from their input(s).

3.4 Accuracy. Generally, you should not rely on an Output for advice of any kind, including professional advice such as medical, investment, financial or legal advice. An Output is not a substitute for the advice of a qualified professional. If you Input photos or images, (a) the Software is not to be used for medical advice, diagnosis, treatment, or any medical function and (b) you may not use the Software to obtain private or sensitive information about a person or to assist in identifying a person. You acknowledge that Outputs may be incorrect, biased, incomplete, objectionable, inappropriate and not fit for your purposes. Therefore, you, a human, must independently review your Outputs to evaluate whether or not the Output is accurate and appropriate for your intended use. You shall not use the Output(s) o train other machine learning models or misrepresent that it was created or generated by a human.

LICENSE.

4.1 From DeepCreative. Provided that you are not in breach of this Agreement, DeepCreative grants to you a limited, freely revocable, non-exclusive, non-transferable license during the Test Period to use a single compiled code copy of the Alpha App under your account solely for your own, personal, non commercial use, in accordance with the terms and conditions of this Agreement, for the purposes of testing the Alpha App within the continental United States for the sole benefit of DeepCreative. The foregoing license is not a sale of the Alpha App or a copy of the Alpha App, in whole or in part. As between you and DeepCreative, all rights not otherwise expressly granted under this Agreement are reserved by DeepCreative. If any open source or other third party code is contained in the Software, it is covered by the applicable open source or other third party license.

4.2 Alpha App Sourced from the Apple App Store. If you obtain the Alpha App from the Apple App Store, including from Test Flight, you and DeepCreative understand and acknowledge that (a) this Agreement is solely between you and DeepCreative, and not Apple, Inc., (b) Apple, Inc. has no obligation to provide or furnish any maintenance and support services to you with respect to the Alpha App, and (c) Apple, Inc. has no responsibility for the Alpha App. Your access to and use of the Alpha App must comply with the then current rules and terms established by Apple, Inc. If the Alpha App fails to conform to a warranty, if any, you may notify Apple, Inc. and Apple will refund the purchase price (if any) for the Alpha App you purchased via the Apple App Store to you. To the maximum extent permitted by applicable law, Apple, Inc. will have no other warranty obligation to you with respect to the Alpha App, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be governed solely by This Agreement and any which applies to DeepCreative, the provider of the Alpha App.

4.3 From You.You grant to us the irrevocable, perpetual, gratis, fully paid up, royalty free right and license, with the right of sublicense, throughout the universe to reproduce, modify, publicly display, publicly perform, digitally transmit, distribute, store, and otherwise use your User Content to provide the Alpha App and its functionality to you and to improve and develop the Software, products, and services.

LIMITATIONS OF LICENSE. You shall not and shall not assist anyone directly or indirectly to:

5.1 Reproduce the Alpha App except for the single instance installation on your own mobile

phone;

5.2 Reverse engineer, decompile, transcode, reverse compile, engage in extraction or stealing attacks, or reverse assemble, translate, or otherwise attempt to discover the source code or non-public APIs, underlying ideas or components of the Software (except to the extent these restrictions are expressly prohibited by the laws of the United States and then you shall provide prior notice to us);

5.3 Modify, edit, adapt, or create any derivative works of the Software, documentation, or the DC

Intellectual Property;

5.4 Use any Output in a way that has a material or legal impact on a person (e.g., making a decision about a person with respect to education, employment, housing, law enforcement, citizenship, credit, legal, medical or other important decisions about such a person);

5.5 Separate the Alpha App, which is licensed as a single application, into component parts;

5.6 Merge or combine the Alpha App with any other software except as expressly authorized under this Agreement;

5.7 Attempt to or scan, probe or test for vulnerabilities of the Software or our web site, to breach the security or authentication measures without prior written authorization from us, or willfully render any part of the Software unusable, or take any action that imposes an unreasonable or disproportionately heavy load on the Software or our web site;

5.8 Introduce any Trojan horse, worm, malware, virus, or other malicious code into the Software;

5.9 Send any personal information of children under the age of 13 or applicable age of digital consent to us (excepting only photos where you are the parent or legal guardian of such child and you hold all rights in and to the photo);

5.10 Transfer, or share your account or access credentials to the Alpha Test or transfer, in whole or in part the Alpha App to any other person or entity (e.g., you may not transmit, publicly perform, publicly display, publish, sublicense, redistribute, encumber, sell, rent, lease, lend, otherwise transfer rights to or copies of the Alpha App, in whole or in part);

5.11 Remove or alter any trademark, copyright or other proprietary notices, legends, symbols or labels in the Software;

5.12 Bypass, alter, disable, or interfere with digital rights management measures that may be integrated with the Software;

5.13 Use the Software to create applications that are similar or substantially similar to proprietary software applications that are protected by intellectual property laws;

5.14 Use the Alpha App for any purpose other than testing the Alpha App for the benefit of DeepCreative, including, by way of example only, and not limitation, use the Alpha App (a) for business purposes, (b) to develop products or services which compete directly or indirectly with DeepCreative or the Software, (c) for any activities where the use or failure of the Software could lead to death, personal injury, environmental damages (such as, by way of example only and not limitation, the operation of life support systems, air traffic control, nuclear facilities), and (d) to process or store any data that is subject to the International Traffic in Arms regulations that are maintained by the Department of State;

5.15 Use the Alpha App to create, receive, maintain, transmit, or otherwise process any information that includes or constitutes “Protected Health Information”, as defined under the Health Insurance Portability and Accountability Act, as amended, Privacy Rule (45 C.F.R. Section 160.103); and

5.16 Infringe, misappropriate or violate anyone’s intellectual property (including DC Intellectual Property) or other rights.

CONFIDENTIALITY AND NON DISCLOSURE.

6.1 You will (a) only use DC Confidential Information to exercise your rights and fulfill your obligations under this Agreement (b) take reasonable measures to protect the DC Confidential Information from unauthorized disclosure, use, or access using at least the same degree of care that you use to protect information of similar value and importance or your own confidential information, provided that such measures constitute no less than reasonable care. If you are assenting to these terms on behalf of any Entity, you and such Entity will be responsible for any breach of this Section by its employees, contractors, and agents.

6.2 You may disclose DC Confidential Information as required by law, provided that you use reasonable efforts to notify us in advance and you limit such disclosure to solely the minimum amount of information necessary to meet such legal disclosure requirements. You will promptly notify us if you know or suspect that the obligations of confidentiality have been breached and shall cooperate to mitigate further risks of misuse, loss, and damage. You will delete or destroy the DC Confidential Information promptly upon our request. "DC Confidential Information" means information that is being or has been developed by DeepCreative in connection with its business, including, without limitation, the Software (in whole or in part), documentation, and data, and which has been disclosed to you, orally, audibly, or in writing, before or after the Alpha Test, concerning (a) the Software, including operating systems, applications and program listings, libraries, databases and data, hardware, current or future products or services, (b) fees, costs and pricing structures, (c) product designs, flow charts, analysis, reports, and White Papers, (c ) security and cybersecurity measures, (d) trade secrets (including but not limited to algorithms), inventions, patent applications, devices, new developments, methods, and processes, whether patentable or unpatentable and whether or not reduced to practice, and (e) all similar and related information in whatever form.

6.1.3 Your obligations with respect to DC Confidential Information do not apply if you demonstrate that DC Confidential Information was (a) already known to you at the time of first disclosure by us (whether or not such disclosure occurred before or after the commencement of the Alpha Test), (b) disclosed to you by a third party without a duty of confidentiality, (c ) publicly available through no fault of you, or (d) independently developed, without use of, access to, or reliance upon DC Confidential Information.

NO WARRANTIES BY DEEPCREATIVE. THE SOFTWARE AND OUTPUTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. DEEPCREATIVE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, SECURITY, RELIABILITY, PRIVACY, COMPATIBILITY, AVAILABILITY, AND ALL WARRANTIES IMPLIED FROM COURSE OF DEALING, TRADE USAGE, AND COURSE OF PERFORMANCE. BY TESTING THE ALPHA APP, YOU ARE ASSUMING ALL RISK ASSOCIATED WITH THE SOFTWARE AND OUTPUTS.

LIMITATION OF LIABILITY. NEITHER WE NOR OUR LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, OR ASSIGNS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA OR OTHER LOSSES, ARISING OUT OF YOUR USE OF THE ALPHA APP OR THIS AGREEMENT, EVEN IF THE DAMAGES ARE FORESEEABLE AND WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY UNDER THESE TERMS WILL NOT EXCEED THE GREATER OF THE AMOUNT YOU PAID FOR THE ALPHA APP OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 6 MONTHS BEFORE THE DAMAGES, LOSSES, AND CAUSE OF ACTION FIRST AROSE OR ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS OF LIABILITY ARE ESSENTIAL TO THIS AGREEMENT AND WE WOULD NOT OFFER THE ALPHA APP TO YOU UNDER THIS AGREEMENT WITHOUT THESE LIMITATIONS.

DEEPCREATIVE’S LICENSORS ARE INTENDED THIRD PARTY BENEFICIARIES OF SECTION 7, THIS SECTION, and SECTION 9.

SOME STATES DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO YOU MAY HAVE ADDITIONAL RIGHTS AND SOME OR ALL OF THESE LIMITATIONS MAY NOT APPLY TO YOU, IN WHICH CASE, SECTIONS 7 AND 8 OF THIS AGREEMENT ONLY LIMIT OUR RESPONSIBILITY TO THE MAXIMUM EXTENT PERMISSIBLE IN YOUR STATE OF RESIDENCE.

INDEMNIFICATION. You shall indemnify and hold DeepCreative (and its directors, officers, advisors, employees, agents, licensors, successors and assigns) harmless from and against all claims, liabilities, damages, and expenses (including costs and reasonable attorneys’ fees) and other losses arising out of or relating to, directly or indirectly, (a) your use of and access to the the Alpha App, (b) your Feedback; (c) your User Content; (d) your breach(es) of this Agreement; (e) your violation(s) of applicable laws, rules, regulations or rights of any third party; (f) criminal acts, fraud (actual or alleged), gross negligence, intentional misconduct committed by you (including any Entity you represent). For the avoidance of doubt, as used in (a) - (f), “you(r)” includes any activities occurring under your account. DeepCreative will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You will not settle any matter without the prior written consent of DeepCreative. DeepCreative reserves the right, at your expense, to participate in or assume the exclusive defense and control of any matter for which you are required to indemnify us, and you shall cooperate with our defense of these claims.

ARBITRATION, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER

YOU AND WE AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS:

10.1 Opt Out from Arbitration. You have the right to opt out of arbitration by sending us a written notice within 30 days of your assenting to: (a) the terms of this Agreement and (b) any update to this Agreement by completing this form. If you opt out to an update, the last set of agreed upon arbitration terms shall apply.

10.2 Informal Dispute Resolution. We would like to try to address your concerns prior to the commencement of any formal arbitration. Before either of us files a claim against the other, we shall try to resolve the dispute informally and shall commence this process by sending a written notice to us by completing this form. We shall send notice to you to your email address that you provided us when you signed up for the account for the Alpha Test. Any applicable statute of limitations will be tolled during the Informal Dispute Resolution process. If a Dispute remains unresolved after 60 days, you or we will then have the right to initiate arbitration. We and you shall, upon the other party’s request, attend an individual settlement conference if requested by the other party.

10.3 Mandatory Arbitration; Arbitration Rules and Forum. The activities described in this Agreement involve interstate commerce and the Federal Arbitration Act will govern the interpretation and enforcement of these arbitration terms, as well as any arbitration. You and we shall resolve all disputes arising out of or relating to this Agreement and the Software, regardless of when such claims arose (even if before the Agreement existed) (“Dispute(s)”), through final and binding arbitration. Either you or we may initiate arbitration by sending a request for arbitration in accordance with JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, currently available here. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys fees and interest, shall be subject to JAMS’ most current version of the Streamlined Rules and Procedures, currently available here. DeepCreative will not seek attorneys’ fees and costs unless the arbitrator determines that your claim is frivolous.

10.4 Arbitration Procedure. The arbitration will be conducted by a single arbitrator who shall (a) be a retired judge in the state of California, (b) have experience with technology transactions and disputes, (c) be required to follow applicable law in rendering the award and to provide the legal basis, analyzing the facts and law, in a statement that is delivered with the final award. The arbitration will be conducted via video conference if possible, provided, however, that if the arbitrator determines that a hearing should be conducted in person, the location will be as determined by the arbitrator, mutually agreed upon, or in the county where you reside. The arbitrator shall have the exclusive authority to resolve any Dispute, except the state and federal courts of San Francisco, California have the authority to determine any dispute under Subsection 10.5 (Limited Exceptions to Mandatory Arbitration) and the any Dispute about the enforceability, validity of the class action waiver, or requests for public injunctive relief. Any settlement offer amounts will not be disclosed to the arbitrator until after the determination by the arbitrator of the final award which shall be confidential.

10.5 Limited Exceptions to Mandatory Arbitration. These arbitration terms do not require informal dispute resolution or arbitration of the following claims: (a) individual claims brought in small claims court; (b) injunctive or other equitable relief to stop unauthorized use or abuse of the Software; and/or (c) infringement or misappropriation of the Software and/or DC Intellectual Property.

10.6 JURY TRIAL WAIVER AND CLASS ACTION WAIVER. You and we knowingly and irrevocably waive any right to trial by jury in any action, proceeding, or counterclaim. Disputes shall only be brought on an individual basis and only individual relief is available. You may not bring a Dispute as a plaintiff or class member in any purported class, representative, or consolidated proceeding. Class actions, class arbitrations, and representative actions are prohibited. Any request for public injunctive relief shall be severed and litigated in court after completing arbitration for all claims, including the underlying claim.

10.7 BATCH ARBITRATION. If, within 90 days, 25 or more claimants who are represented by the same or similar counsel file demands for arbitration raising substantially similar Disputes, then JAMS will administer them in batches of up to 50 claimants (each, a “Batch”), unless there are fewer than 50 claimants in total, which will comprise a single Batch. JAMS will administer each Batch as a single, consolidated arbitration, with one set of fees, one arbitrator, and one video conference or in person hearing or hearing at a location decided by the arbitrator for the one Batch.If any part of this Section is found to be invalid or unenforceable, as to a Batch or particular claimant, that part will be severed and arbitrated in individual proceedings

10.8 SEVERABILITY. If any part of this Section 10 is found to be unenforceable or illegal, the remainder will remain in effect, except that a determination of partial illegality or unenforceability would allow class action, class arbitration, or representative action, then all of Section 10 will be unenforceable in its entirety.

COPYRIGHT. If you believe someone is infringing your copyright or other intellectual property rights, you can send us a notice of the alleged infringement and we will take appropriate action including suspending or terminating a user’s access to the Software. Notices submitted by using this form.

Your notice must include the following: (a) a description of the copyrighted work that you allege has been infringed; (b) a description of where the material that you allege is infringing is located; (c) your telephone number, address, and an email address where you can be reached; (d) a physical signature of the person who is authorized to act on behalf of the owner of the copyright; (e) a statement by you that you have a good-faith belief that the disputed use is not authorized under law or by the copyright owner or its agent; and (f) a statement by you made under penalty of perjury that you are the copyright owner or authorized to act on the copyright owner’s behalf and all of the information contained in your notice is accurate.

GENERAL TERMS

12.1 Assignment. This Agreement and the rights, licenses, duties, and obligations of DeepCreative may be assigned by DeepCreative, in whole or in part, but may not be assigned by you without the prior written consent of an authorized representative of DeepCreative. Any attempt by you to transfer or delegate any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void ab initio.

12.2 Changes to this Agreement. We may update this Agreement by providing you with reasonable notice, including posting an update on our website, sending an email to the email address you provide, or notifying you in the Alpha App. If we, in our sole judgment, believe that an update materially affects your rights or obligations, unless the update is necessary for us to comply with applicable law, we will provide you with reasonable notice. In the event that your email address is not valid or, for any reason, is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice and your continued use of or access to the Software after the update goes into effect shall constitute your acceptance of the update. If you do not agree with the terms of the update, you may stop using the Alpha App.

12.3 Changes to the Software. DeepCreative reserves the right, at any time, to modify, suspend, or discontinue the Software (in whole or in part) with or without notice to you. DeepCreative will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Software or any part thereof.

12.4 Export Controls. You must comply with all applicable laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. You shall not export, re-export, or transfer, directly or indirectly, the Software, Flash Apps created as a result of your Inputs into the Software, technical data, or User Content in violation of the United States export laws or regulations to (a) any U.S. embargoed countries (“Embargoed Countries”) or to any person or entity on a) the U.S. Treasury Department’s list of Specially Designated Nationals, (b) any other restricted party lists identified by the OFAC, (c) the U.S. Department of Commerce Denied Persons List or Entity List, or (d) any other restricted party lists (collectively “Restricted Person or Entity”). By using or accessing the Software, you represent and warrant that you are not (i) located in an Embargoed Country; (ii) a Restricted Person or Entity; and (iii) accessing the Software on behalf of a Restricted Person or Entity. None of your Inputs may include any material that requires a government license for release, export, or re-export. You are solely responsible, at your sole expense, for your compliance with all applicable laws, rules, and regulations of the United States.

12.5 Legal Compliance. We reserve the right in our sole discretion to (a) investigate violations of this Agreement; (b) comply with governmental, court, and law enforcement requests or requirements related to the use of the Alpha App and data we collect; (c) report information about you to appropriate law enforcement authorities; and (d) to cooperate with all applicable law enforcement authorities in prosecuting persons or entities who violate the this Agreement and/or applicable law.

12.6 U.S. Government. To the extent that the Alpha App is being used by or on behalf of the U.S. Government, the Alpha App will be deemed commercial computer software, commercial product(s), commercial computer software documentation, and/or commercial services (as applicable). Accordingly, U.S. Government agencies, or any contractor therefor, will have only those rights with respect to the Alpha App that are granted to all other users of the Alpha App, in accordance with 47 C.F.R. 227.7202 and 48 C.F.R. 12.212, as applicable.

12.7 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

12.8 Headings. The headings in this Agreement are for convenience only and are not intended to affect the interpretation or meaning of this Agreement.

12.9 No Waiver. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision or the right to enforce any provision at any time thereafter.

12.10 Injunctive Relief. If you breach Sections 2.1, 4, 5 or 6 of this Agreement, you agree: (a) that no adequate remedy at law exists; (b) such breach would cause irreparable harm to DeepCreative and it would be difficult to determine the damages caused by such breach(es); and (c) injunctive relief would provide the best remedy for such breach(es). You waive any demand that DeepCreative prove actual damages, post a bond or other security in connection with such injunctive relief, and all other oppositions to injunctive relief.

12.11 Entire Agreement. This Agreement comprises the entire agreement between you and DeepCreative with respect to the subject matter and supersedes all prior and contemporaneous agreements, proposals, statements, communications, presentations, and understandings (oral and written).

12.13 Governing Law. This Agreement shall be governed by and construed under the laws of the State of California applicable to agreements made and to be wholly performed therein, without regard to its rules governing choice of law and conflicts of laws principles and the proper venue for disputes arising out of or relating to this Agreement will be the arbitration venue set forth in Section 10 (Arbitration, Jury Trial Waiver, Class Action Waiver) or, if arbitration does not apply, the state and federal courts located in San Francisco County, California, USA. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

12.14 Electronic Communications. The communications between you and DeepCreative use electronic means, whether via email or DeepCreative posts notices in the Software. For contractual purposes, you (a) consent to receive communications from DeepCreative in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that DeepCreative provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights. While we use reasonable security measures, no method of transmission over the internet is entirely secure and we cannot guarantee the security or confidentiality of electronic communications. You therefore transmit such information at your own risk and should evaluate carefully what information you elect to send to us via any electronic means of communication.

12.15 Relationship of the Parties. There is no employment, agency, franchise, partnership, or joint venture relationship between the parties. Neither party will have the power to incur obligations on behalf of, or bind the other party without the other party’s prior written consent.

12.16 No Third Party Beneficiaries. Except as set forth in Sections 7, 8, and 9, there are no third party beneficiaries to this Agreement.

12.17 Force Majeure. DeepCreative will not be liable for cessation, interruptions, failures, or delays in the delivery of the Alpha App, any of its functionality, or Outputs due to causes beyond its reasonable control including earthquakes, fires, floods, hurricanes, or other natural disasters, acts of God, acts of terrorism, labor disputes, civil disturbances, war (whether or not officially declared), cyber attacks, the inability to obtain essential commodities, supplies, or services required in the conduct of its business, or changes to or adoption of rules, regulations, laws, judgments or decrees.