Terms of Service
Last revised on: January 2, 2024
This Agreement is entered into by Sortium Inc., a Delaware corporation (“Sortium” or “We”) and the entity or person agreeing to these terms (the “Customer,” “You” or “Your”) and govern the Customer’s access to and use of the Services.
This Agreement is effective when the Customer is presented with this Agreement and proceeds to use the Services (the “EffectiveDate”) or to receive or distribute Assets. These terms may be updated and presented again to the Customer from time to time in the sole discretion of Sortium. Continued use of the Services constitutes acceptance of the updated terms. If You do not agree to this Agreement, please stop using the Services. Other documents referenced here may also bind Customer’s use of the Services.
This Agreement requires the use of arbitration (see below in the “Dispute Resolution” section) on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute. Unless you opt out of the arbitration agreement as described in the “Dispute Resolution” section below: (1) you may pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you waive your right to seek relief in a court of law and to have a jury trial on your claims.
Sortium may modify this Agreement at any time by updating this posting. All changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Continued use of our Services following such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. You are bound by any such modifications and therefore you are expected to visit this page periodically to review this Agreement from time to time so you are aware of any changes.
1. Service Availability and Quality
We are constantly improving the Services to make them better. The Services are subject to modification and change, including but not limited to the art style of Assets, the algorithms used to generate the Assets, and features available to the Customer. No guarantees are made with respect to the Services’ quality, stability, uptime or reliability. Please do not create any dependencies on any attributes of the Services or the Assets, and therefore, any dependencies you created on the Services or the Assets shall your sole obligation and liability. We will not be liable to You or Your downstream customers for any harm caused by Your dependency on the Service.
Both the Services and the Assets are provided to Customer on an “as-is” basis. Sortium hereby disclaims all warranties, express or implied, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Sortium does not warrant that the services will be error-free, uninterrupted, or completely secure. You are solely responsible for determining the appropriateness of using or redistributing the Assets and assume any risks associated with use of the Services.
Sortium reserves the right to suspend or ban Your access to the Services and/or Assets at any time, and for any reason. You may not use the Services for competitive research. You may not reverse engineer the Services or the Assets. You may not use automated tools to access, interact with, or generate Assets through the Services.
We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.
2. Your Information
3. Age Requirements
By accessing the Services, You confirm that You are at least 18 years old. Persons under the age of 18 are not eligible to use any Services. If You meet the minimum age of digital consent to access the Services in Your country, but not old enough to have authority to consent to our terms, Your parent or guardian must agree to our terms on Your behalf.
Please ask Your parent or guardian to read these terms with You. If You are a parent or legal guardian, and You allow Your teenager to use the Services, then these terms also apply to You and You are responsible for Your teenager’s activity on the Services.
Sortium makes no guarantees as to the suitability of the Assets for the Customer’s age. You agree that you, not Sortium, are responsible for all of Your Asset that you make available on or in the Services. Any Asset posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Sortium in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
The Services are the property of Sortium and our licensors. Subject to the limited rights we expressly grant to you in this Agreement, we and our licensors reserve all of our and our licensors’ right, title and interest in and to the Services, respectively, including all of our and our licensors’ related intellectual property rights. We grant no rights to you or any Customer pursuant to this Agreement other than as expressly written. You agree and acknowledge that Sortium retains all right, title and interest in and to the Services and the Assets and all proprietary information and technology used by Sortium or provided to You in connection with the Services and the Assets, including all improvements, enhancements or modifications thereto (the “Technology”), and that the Technology is protected by intellectual property rights owned by or licensed to Sortium or giving Sortium right to use the Technology at no cost or consideration. Other than as expressly set forth in this Agreement, the Agreement or any other express or implied agreements between you and Sortium do not confer on you any right, title or interest in the Technology and Sortium reserves all right, title and interest (including all intellectual property rights) in the Technology. Subject to the limited rights expressly granted hereunder, Sortium reserves all right, title and interest in and to the Services and the Assets, including the Technology and all related intellectual property rights and any source code (including any updates, modifications, improvements, enhancements, customizations thereto and any local versions, translations and any other derivatives works made by Sortium), and all worldwide copyrights, trade secret rights, patent rights, trademark rights, and other intellectual property and proprietary rights therein (including applications and registrations therefor). No rights are granted to you hereunder other than as expressly set forth herein. Items that are not specifically transferred to the other party will remain the property of their respective owners on the date hereof and each party expressly reserves such rights. Without limiting the foregoing, Sortium shall own any content created by it in respect of analytics or audience settings, data warehouse related calculations, tracking codes, data, algorithms or other intellectual property, which shall be licensed to all Customers, regardless of whether such Customers are purchasing Packages or solely registering an account for the Services, on a limited, royalty-free, nonexclusive, non-transferrable, non-sublicensable and revocable basis.
With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, in and to the Third-Party Materials, except as expressly set forth in any applicable third-party license. For purposes of these Terms, “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services or the Assets that are not proprietary to Sortium.
Sortium does not claim ownership of Assets You create with the Services and subject to the above license. You own all Assets You create with the Services, to the extent possible under current law. This excludes upscaling or modifying the images of others, which images remain owned by the original Asset creators. Sortium makes no representations or warranties with respect to the current law that might apply to You. You should consult Your own lawyer about the state of current law in Your jurisdiction. Your ownership of the Assets you created persists even if in subsequent months You cancel Your account.
Customer shall be allowed a peak load of various number of simultaneous Asset generations through Sortium AI depending on their Packages. Customer agrees not to take any action inconsistent with Sortium’s title and ownership in the Technology including Sortium’s intellectual property. Customer agrees that Sortium is free to use and exploit any Feedback (as defined below) from Customer, and all generalized knowledge, expertise, know-how, and technologies related to or acquired in connection with this Agreement, in any manner for all purposes (including in connection with developing new or improved Services). Customer agrees that: (a) Sortium retains ownership of the API and all of its components or parts and rights therein and Company will have no ownership rights in the API in any manner; (b) Customer will not use, copy, or distribute the Services except as expressly allowed in this Agreement; (c) Customer will not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or otherwise attempt to determine protocols from, or create derivative works or copies of, the API unless expressly permitted to do so under this Agreement; (d) Customer will not use the Services or any confidential or proprietary information of Sortium to build an application, content or product that is competitive with any Sortium product, content or service, including the Services, and (e) Customer will not disclose to any third party any benchmarking or comparative study involving the Services.
Rights of Sortium
By using the Services, You grant to Sortium, its successors, and assigns a perpetual, worldwide, non-exclusive, sublicensable no-charge, royalty-free, irrevocable copyright license to receive, host, store, analyze, process, transmit, reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute text, and image prompts You input into the Services, or Assets produced by the service at Your direction. This license survives termination of this Agreement by any party, for any reason. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Asset, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
You acknowledge that Sortium has no obligation to pre-screen the Assets (including, but not limited to, the Assets You create with the Services), although Sortium reserves the right in its sole discretion to pre-screen, refuse or remove any Asset. By entering into the Agreement, You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Asset. In the event that Sortium pre-screens, refuses or removes any Asset, you acknowledge that Sortium will do so for Sortium’s benefit, not yours. Without limiting the foregoing, Sortium shall have the right to remove any Asset that violates the Agreement or is otherwise objectionable.
Unless expressly agreed to by Sortium in writing elsewhere, Sortium has no obligation to store any of Your Asset. Sortium has no responsibility or liability for the deletion or accuracy of any Asset, including Your Asset; the failure to store, transmit or receive transmission of Asset; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. You agree that Sortium retains the right to create reasonable limits on use and storage of the Asset, including Your Asset, such as limits on file size, storage space, processing capacity, and similar limits described on the website and as otherwise determined by Sortium in its sole discretion.
You agree to allow Sortium to use your name and website, in Sortium’s sole discretion, for company promotions, online portfolio, past clients list, on social media, in print material, etc. for advertising and promoting Sortium’s services to other companies. You agree that Sortium with prior written consent may post, distribute or publish, including in marketing materials for Sortium, a public case study of your revenue growth using Sortium’s Services and other relevant materials.
You may choose to submit comments, bug reports, ideas or other feedback about the Site, including without limitation about how to improve the Site (collectively, "Feedback"). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You grant Sortium a perpetual, fully paid up, royalty-free, irrevocable, worldwide, non-exclusive, non-transferable, and non-sublicensable license to use and incorporate into the Services or the Assets or other Sortium products, business, or services any suggestions, enhancement requests, recommendations or other feedback provided by you or its employees or agents relating to the Services or the Assets.
6. Customer Conduct
As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. Transmission of any material in violation of any federal, state or local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets. This also includes links or any connection to such materials. You shall not (and shall not permit any third party) either (a) take any action or (b) upload, post, e-mail, transmit or otherwise make available any Assets on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Sortium’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Sortium; (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 this 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, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in 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. We reserve the right to refuse Service or access to the Services, or terminate accounts at our sole discretion, including, without limitation, if we believe that your conduct violates applicable law, violates this Agreement, or is harmful to our interests.
By accepting this Agreement, you represent and warrant to Sortium that (a) you have all necessary rights and authority to execute and deliver this Agreement, and perform your obligations hereunder and to grant the rights granted under this Agreement; and (b) nothing contained in this Agreement, or in the performance of this Agreement will place it in breach of any other material contract or obligation. You further represent and warrant to Sortium and unconditionally guarantees that any elements of text, graphics, videos, photos, content, designs, trademarks, artwork or other materials furnished to Sortium for inclusion in web pages, social media, etc. are owned by you, or that you have permission from the rightful owner to use each of these elements. You agree to hold harmless, protect, and defend Sortium from any claim or suit arising from the use of such elements furnished by you. You solely responsible for actions and omissions of its personnel and the accuracy and completeness of any advertising claims and associated disclaimers made in such content.
7. Interactions with Other Customers
You are solely responsible for your interactions with other Customers and any other parties with whom you interact; provided, however, that Sortium reserves the right, but has no obligation, to intercede in such disputes. You agree that Sortium will not be responsible for any liability incurred as the result of such interactions.
Services may contain User Content provided by other Registered Users. Company is not responsible for and does not control User Content. Company 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.
8. Third-Party Services
As applicable, we may utilize links and other tools to connect users to third party services and websites. You acknowledge and agree that the Services may operate on, or with, or using application programming interfaces (“APIs”) and/or other services operated or provided by third parties (“Third Party Services”). Sortium does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Services, and Sortium is not responsible for the operation of any Third Party Services or the availability or operation of the Platform to the extent such availability and operation is dependent upon Third Party Services. You are solely responsible for procuring any and all rights necessary to access Third Party Services and for complying with any applicable terms or conditions thereof. Sortium does not make any representations or warranties with respect to Third Party Services. Any exchange of data or other interaction between you and Third Party Services is solely between you and that third party, and is governed by such third party’s terms and conditions.
We have no control over the content and policies of these Third Party Services, and in no event shall we be held responsible or liable for the accuracy, reliability, or currentness of any third party’s content or policies. Users who access or use a Third Party Service through Sortium are solely responsible for complying with the terms and policies of these third parties. You hereby release and forever discharge the Sortium (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Platform (including any interactions with, or act or omission of, other Platform users or any Third-Party Services). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9. Fees and Purchase Terms
You agree to pay all fees or charges to Your account in accordance with your Package, the fees, charges and billing terms in effect at the time a fee or charge is due and payable (“Fees”). You must provide Sortium with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) through a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs Your use of the designated credit card, and You must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Sortium with your credit card number and associated payment information, you agree that Sortium is authorized to immediately invoice Your account for all Fees due and payable to Sortium hereunder and that no additional notice or consent is required. You agree to immediately notify Sortium of any change in Your billing address or the credit card used for payment hereunder. Sortium reserves the right at any time to change the Fees and billing methods, either immediately upon posting on the Services or by e-mail delivery to You.
You will be responsible for payment of the applicable Package subscription fees for any Services at the time You create your account and select Your Package. Fees are charged and billed only monthly or yearly, depending on the Customer’s Package, in advance and must be paid in U.S. dollars. Except as set forth in the Agreement, all Fees for the Services are non-refundable, non-cancelable and non-creditable. No contract will exist between You and Sortium for the Services until Sortium accepts Your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
Sortium reserves the right to modify the Fees for the Services under one or more Packages, effective upon the Renewal Commencement Date (as defined below), by notifying Customer in writing of the change in Fees before the end of the then-current Package term.
Your Package will continue indefinitely until terminated in accordance with the Agreement. After Your initial subscription period for your Package, and again after any subsequent subscription period, Your Package will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Sortium’s then-current price for such Package. You agree that Your account will be subject to this automatic renewal feature unless You cancel (i) your yearly Package via Your account at least thirty (30) days or (ii) your monthly Package via Your account at least ten (10) days prior to the Renewal Commencement Date. If You do not wish Your account to renew automatically, or if You want to change or terminate Your Package, You can adjust Your preference within Your account. If You cancel or downgrade Your Package, You may use Your Package until the end of Your then-current Package term; Your Package will not be renewed after Your then-current term expires. However, You will not be eligible for a prorated refund of any portion of the Package fee paid for the then-current Package period. By subscribing to Your Package, You authorize Sortium to charge your Payment Provider now, and again at the beginning of any subsequent Package period. Upon renewal of Your Package, if Sortium does not receive payment from Your Payment Provider, (a) You agree to pay all amounts due on Your account upon demand and/or (b) You agree that Sortium may either terminate or suspend Your Package and continue to attempt to charge Your Payment Provider until payment is received (upon receipt of payment, Your account will be activated and for purposes of automatic renewal, Your new Package period will begin as of the day payment was received).
Package Upgrade or Downgrade
For any upgrade in a subscription level with a month-to-month Package , Customer shall be automatically charged the new subscription Fee (or a prorated portion of new subscription Fee if the Package upgrade is requested prior to the end of the then-current Package term), effective as of the date the Package upgrade is requested and for each subsequent one-month recurring cycle pursuant to the billing method applicable to Customer. If Customer has a yearly Package, it shall be immediately charged any increase in subscription level plan cost pursuant to the billing method applicable to Customer, prorated for the remaining Package of the yearly billing cycle; provided, however, any decrease in a subscription level plan cost shall only take effect upon the Renewal Commencement Date. Any downgrade of subscription level may cause the loss of features or capacity of Customer’s accounts. We do not accept any liability for such loss.
In the event that Customer uses up its entire Package and does not otherwise upgrade its Package for additional Services, Customer will have to wait until its Package is renewed and/or upgraded to continue using the Services. Asset generations are limited to permitted number of generations under each Package offered by Sortium and additional generations over the number of generations permitted under each Package are not allowed until otherwise agreed by Sortium.
If any amount owing by Customer under this Agreement for the Services is ten (10) or more days overdue, Sortium may, in our sole discretion and without limiting our other rights and remedies, suspend your and any of Customer’s access to the Services and/or otherwise limit the functionality of the Services until such amounts are paid in full, or terminate the Package. If Sortium suspends, limits, or terminates the Services pursuant to this Section 2, then Sortium will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such actions. Additionally, any payments more than ten (10) days overdue shall bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law (the “Late Payment Fee”).
Sortium reserves the right to modify the Late Payment Fee for the Services under one or more Packages, effective upon the Renewal Commencement Date, by notifying Customer in writing of the change in Fees before the end of the then-current Package term.
The Fees do not include any Sales Tax that may be due in connection with the Services. If Sortium determines it has a legal obligation to collect a Sales Tax from You in connection with this Agreement, Sortium shall collect such Sales Tax in addition to the Package fees. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Sortium, You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and You will indemnify Sortium for any liability or expense Sortium may incur in connection with such Sales Taxes. Upon Sortium’s request, You will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that You have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
You agree to make all payments of fees to Sortium free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Sortium will be Your sole responsibility, and You will provide Sortium with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
10. Non-Disclosure and Confidentiality
From time to time during the term of this Agreement and/or the applicable Package (the “Term”), Sortium (as the “Disclosing Party”) may disclose or make available to Customer (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprised of or related to intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as this Agreement or the terms of the customer agreement for the applicable Package, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 10 by the Receiving Party or any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed pursuant to applicable law. The Receiving Party shall during Term and for five years after the termination of the Term: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement and/or the applicable Package; and (iii) not disclose any such Confidential Information to any person, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms. The Receiving Party shall be responsible for any breach of this Section 10 caused by any of its representatives. On the expiration or earlier termination of this Agreement and/or the applicable Package, the Receiving Party and its representatives shall, promptly return all Confidential Information and copies thereof that it has received under this Agreement and/or the applicable Package.
You agree to indemnify and hold Sortium, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Sortium Party” and collectively, the “Sortium 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 Asset; (b) Your use of, or inability to use, any Services; (c) Your violation of the Agreement; (d) Your violation of any rights of another party, including infringing or misappropriating third parties’ intellectual property rights; or (e) Your violation of any applicable laws, rules or regulations. Each applicable Sortium Party 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 will fully cooperate with such Sortium Party in asserting any available defenses. This provision does not require You to indemnify any of the Sortium 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 the website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of the Agreement and/or your access to the Services.
12. Disclaimer of Certain Damages and Limitation on Liability
Your use of the Services is at your own risk. If you are dissatisfied with any of the Asset, other contents, any service on, or feature of the Services or with this Agreement, your sole remedy is to discontinue use of the Services. IN NO EVENT WILL Sortium OR ANY THIRD PARTIES MENTIONED ON THE SERVICES BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, PUNITIVE, INCIDENTAL, EXEMPLARY, AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Sortium IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME COUNTRIES, STATES, OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY GROSS NEGLIGENCE, PERSONAL INJURY OR DEATH, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE Sortium’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT SUCH EXCLUSION OR LIMITATION IS ALLOWABLE UNDER THE APPLICABLE LAW. In no event shall the total liability of Sortium to you for all losses and damages, including for any implied warranties, exceed the greater of fifty U.S. dollars (US $50.00) or the total amount You paid Sortium to use any product of, service on, or feature of the Services in the twelve months prior to the date of an initial claim made against Sortium.
Customer acknowledges and agrees that the Services is an experimental and in-development service that may change, be updated, or modified in various ways, and that it may encounter issues, errors, or other unexpected challenges. Sortium makes no guarantees or warranties as to the performance, functionality, or suitability of the Services for any particular purpose. Notwithstanding the foregoing, Sortium values its relationship with Customer and shall use commercially reasonable efforts to support Customer’s success and address any issues that may arise in connection with Customer’s use of the Services.
13. Term and Termination
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.
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 the Services, unless earlier terminated in accordance with the Agreement.
If Customer subscribes to a Package, either Customer or Company may terminate the Package for any reason upon (i) thirty (30) days' written notice for yearly Packages and/or (ii) ten (10) days' written notice for monthly Packages to the other party. Customer will not be eligible for a prorated refund of any portion of the Fee paid for the then-current Package. Any termination of this Agreement, Services and/or Packages will also contemporaneously terminate all licenses and access authorizations that they grant.
If You have materially breached any provision of the Agreement, or if Company is required to do so by law (e.g., where the provision of the website, the application or the Services is, or becomes, unlawful), Company has the right to, immediately and without notice, suspend or terminate any Services and/or Packages provided to You. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to You or any third party for any termination of your Services and/or Packages. Company shall not be liable to Customer by reason of the termination of your Services and/or Packages in accordance with this Agreement in any circumstances whatsoever, whether on account of the loss by Customer or of present or prospective sales, investments, compensation or goodwill, and Company shall not be obligated to make any termination or other payments to Customer in connection with the termination of this Agreement unless explicitly required to under this Agreement.
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 all Your related information, files and Your Asset; provided that, any of Your Asset that You previously made available in any public areas of the Service may be retained in perpetuity. 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 Asset associated therewith from our live databases. Sortium will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Asset. 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.
14. Copyright Policy
Sortium respects the intellectual property rights of others. It is Sortium’s policy, at its discretion and when appropriate, to terminate the accounts of/relationship with users who may infringe or repeatedly infringe the copyrights of third parties.
To submit a copyright infringement notification to Sortium relating to the Services, including but not limited to user submissions or Asset, please submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") or, as applicable, other laws, by providing the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of the preceding paragraph, your notification may not be valid. Please see 17 U.S.C. § 512 for more information regarding the DMCA and DMCA notifications.
Our agent to receive notification of claimed copyright infringement can be reached as follows:
By email: email@example.com
Attn: Legal Department
114 NW 25th Street Miami FL, 33127
15. Dispute Resolution
PLEASE READ THIS ARBITRATION AGREEMENT CAREFULLY. IT IS PART OF YOUR CONTRACT WITH Sortium AND AFFECTS YOUR RIGHTS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of any product or service provided by Sortium that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this arbitration agreement (this “Arbitration Agreement”). Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Sortium, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written notice of dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Sortium should be sent to:
Attn: Legal Department
114 NW 25th Street Miami FL, 33127
After the Notice is received, You and Sortium may attempt to resolve the claim or dispute informally. If You and Sortium do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in the State of New York, unless the parties agree otherwise. If You reside outside of New York, the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If You or Sortium pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Sortium, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and Sortium.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Sortium in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND Sortium WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement, including the rights set forth in this Arbitration Agreement as they apply to the party asserting the claim.
Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with Sortium.
Small Claims Court. Notwithstanding the foregoing, either You or Sortium may bring an individual action in small claims court.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Governing Law and Jurisdiction. All legal issues arising from or related to your use of the Services and this Agreement shall be construed in accordance with and governed by the laws of the State of Delaware applicable to contracts entered into and performed within the State of New York. Solely in the event that the foregoing Arbitration Agreement permits the parties to litigate in court (a) the parties hereby agree that all matters relating to the Services and this Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) and (b) any legal suit, action, or proceeding arising out of, or related to, this Agreement or Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, although we retain the right to bring any suit, action, or proceeding against you for breach of this Agreement in Your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
Venue and Forum Waiver. To the fullest extent permitted by law, you hereby waive any objection which you may now or hereafter have to an inconvenient venue and/or forum by way of arbitral proceeding in the state of Delaware. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Site from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute, claim, or cause of action arising from this Agreement or your use of the Services shall be governed by the applicable law set forth above, without regard to any conflict of law provisions, and you hereby irrevocably submit to the jurisdiction of the courts located in the state, province or country identified below whose law governs.
Specifically excluded from application to this Agreement is the United Nations Convention on Contracts for the International Sale of Goods.
Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, war or failure of third-party service providers.
Security. You warrant and represent that you have taken all reasonable precautions to ensure that any data or information you input and/or upload to the Services is not infected with any virus or anything else which may have a destructive effect on any part of the Services. We take reasonable precautions to prevent the existence of computer viruses or other malicious programs on the Services, but we accept no liability for them if they do exist. It is solely your responsibility to use, update and maintain appropriate antivirus software on your computer.
No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
Survival. The sections and obligations in this Agreement that a reasonable person would expect to survive this agreement, will. Particularly the IP and privacy stuff.
Anti-Corruption. You acknowledge that You have not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any of our employees, representatives or agents in connection with this Agreement. You shall use reasonable efforts to promptly notify us if You become aware of any circumstances that are contrary to this acknowledgment.
Waiver. A party’s failure or delay in exercising any right hereunder shall not operate as a waiver thereof, nor shall any partial exercise of any right or power hereunder preclude further exercise. 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.
Release. You hereby release Sortium Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to any interactions with or conduct of other Customers or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. If You are a California resident, You hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Sortium Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the website or any Services provided hereunder.
Assignment. The Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Sortium’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Notice. Where Sortium requires that You provide an e-mail address, You are responsible for providing Sortium with your most current e-mail address. In the event that the last e-mail address You provided to Sortium is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by the Agreement, Sortium’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Such notice shall be deemed given when received by Sortium by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address. You may give notice to Sortium via e-mail at the following address: firstname.lastname@example.org. Such notice shall be deemed given when acknowledgement of receipt is made by Sortium as a reply to the same e-mail notice and sender e-mail address.
Export Control. The United States and certain other countries control the export of products and information. You agree to comply with such restrictions and not to export or re-export the Services to countries or persons prohibited under export control laws. By downloading the Assets, you are agreeing that you are not in a country where such export is prohibited and that you are not on the U.S. Commerce Department's Table of Denial Orders or the U.S. Treasury Department's list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Content.
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.