Created by Humans, Inc.
Terms of Service
Effective Date: October 17, 2024
Last Updated: October 17, 2024
These Terms of Service (“Terms”) are a legal contract between you (“you”) and Created by Humans, Inc. (“CbH”, "us", "our" or "we") and govern your use of all the text, data, information, software, graphics, videos, audio, photographs and other materials (collectively referred to as “Materials”) that we and our affiliates may make available to you through any part of our site available at www.createdbyhumans.ai (“Site”), any services we may provide through the Site (the “Services” and collectively with the Site and Materials, the “Platform”).
READ THESE TERMS CAREFULLY BEFORE BROWSING THE PLATFORM. USING THE SITE AND/OR ANY SERVICE INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, “YOU” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “YOU” REFERS TO THAT ENTITY. YOU CANNOT USE THE PLATFORM IF YOU DO NOT ACCEPT THESE TERMS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH CBH. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
Table of Contents
- Changes
- General Use
- Using The Platform
- Fees And Payment
- Electronic Communications
- Privacy Policy
- Links To Third-Party Sites
- Unauthorized Activities
- Proprietary Rights
- Disputes Between Users
- Intellectual Property Infringement; DMCA Notices
- Disclaimer Of Warranties
- Limitation on Liability
- Local Laws; Export Control
- Feedback
- Termination
- Dispute Resolution And Arbitration; Mass Arbitration; Class Action Waiver
- General
- California Consumer Notice
- Contact Us
1. Changes
We may alter the Materials and Services we offer you and/or may choose to modify, suspend or discontinue any part or all of the Platform at any time and without notifying you. We may also change, update, add or remove provisions of these Terms from time to time. We will inform you of any modifications to these Terms by posting the modified terms of use on the Site and, if you have registered for an account with us (as described below) and the change materially impacts the rights and obligations of our account holders, by describing the modifications to these Terms in an email that we will send to the address associated with your account in our records. To be sure we properly reach your email inbox, we require you to update your preferred email address in the Platform if it changes at any time after your registration.
If you object to any such modifications, your sole recourse shall be to cease using the Platform. Continued use of the Platform or any portion thereof following notice of any such modifications indicates you acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly designated legal notices or terms located on particular pages of the Site or on the sites of our partners. Such expressly designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
2. General Use
By using the Platform, you agree that you are at least 18 years of age, or, if you are under 18 years of age (a “Minor”), that you are using the Platform with the consent of your parent or legal guardian and you have received your parent’s or legal guardian’s permission to use the Platform and agree to these Terms. If you are a parent or legal guardian of a Minor, you agree to bind the Minor to these Terms and to fully indemnify and hold us harmless if the Minor breaches any of these Terms. You may not use the Platform if you are under the age of 13.
Subject to your compliance with the terms and conditions of these Terms and any applicable Ancillary Agreement (as defined below), CbH herby grants you a limited, non-exclusive, non-transferable right to access and use the Platform solely for your personal, non-commercial use and for any additional purposes set forth in your applicable Ancillary Agreement. Unless otherwise set forth in your applicable Ancillary Agreement, you may not distribute, publicly display, publicly perform or otherwise use the Materials outside the Platform and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit the Materials in any manner. You shall not, directly or indirectly, and shall not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Platform; (b) modify, translate, or create derivative works based on any element of the Platform; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the Platform; (d) use the Platform for timesharing purposes or otherwise for the benefit of any person or entity; (e) remove any proprietary notices from Materials; (f) use the Platform for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Platform; (h) introduce any open source software into the Platform; or (i) attempt to gain unauthorized access to the Platform, its related systems or networks, or to the content and data uploaded by other users.
If your Ancillary Agreement includes permission to use a CbH application programming interface (“API”) to download licensed Works from the Platform, then, subject to your compliance with these Terms, CbH hereby grants you a limited, worldwide, non-sublicensable, non-transferable, nonexclusive license to use the API, in accordance with CbH’s applicable API documentation, for the sole purpose of allowing downloading those Works that you are licensed to use and for the purposes for which you are licensed to use them. Your use of the API as permitted under these Terms may require the use of one or more unique authentication keys (each an “API Key”). If such API Key(s) are required, CbH will issue such API Key(s) to you, and you must reference the applicable API Key(s) in your calls to the API. Such API Key(s) may not be shared and may not be used for any purpose other than as set forth herein.
If you breach any of these Terms, the above license(s) (other than those granted under any Ancillary Agreement) will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof), with the exception of any Ancillary Agreement.
3. Using The Platform
You are responsible for complying with these Terms and the terms of any applicable separate licensing agreement you have with us (each, an “Ancillary Agreement”) when you access and use the Platform. In the event of a conflict between these Terms and the terms of any applicable Ancillary Agreement, the terms of the Ancillary Agreement shall control.
Registration with the Site is not required for purposes of visiting and viewing. However, in order to access certain password-restricted areas of the Platform and to upload, use and license Works (as defined in your applicable Ancillary Agreement), you must register and maintain an active account on the Platform. To create an account with us, you must submit all of the information and documentation required in the account registration section of the Site. Once you submit the required registration information, we will determine whether or not to approve your proposed account. For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes directly in the Platform.
As a condition of uploading, licensing or accessing Works in connection with the Platform and, if applicable under an Ancillary Agreement, receiving Royalties or paying licensing fees, the Platform may require you to provide information or material CbH or its partners deem reasonably necessary to verify your identity and/or your Works, and you further authorize CbH to directly or indirectly take any and all other steps it deems appropriate to verify such information, including checking certain public or commercially available databases and working with third party providers to do so.
You may not maintain more than one active account with the Platform. You are responsible for maintaining the confidentiality of your log-in credentials and agree that you are fully responsible and liable for all usage and activity that occurs through your account, whether authorized by you or not. Unless expressly permitted in writing by CbH, you may not sell, rent, lease, share, or provide access to your account to anyone else. You agree to notify CbH immediately if you know of or suspect any unauthorized use of your account or password or any other breach of security related to your account.
Notwithstanding anything to the contrary in these Terms or in your Ancillary Agreement(s), CbH reserves the right to deny the creation of, suspend access to, or terminate your account, or to remove or modify features, functionalities and/or services available through your account, at any time in its sole discretion and without prior notice or liability to you. If your account is terminated for any reason, you may not create a new account unless you first obtain written permission from CbH.
4. Fees And Payment
You agree to pay all fees applicable to your use of the Platform using one of the payment methods CbH supports. We may suspend or terminate your account and/or access to our Services and the Platform if your payment is late and/or your payment method cannot be processed. By providing your credit card information, you expressly authorize us and/or our third-party payment processor to charge the applicable fees and charges to said payment method as well as taxes and other charges incurred thereto. You agree that CbH may invoice you for any unpaid fees, including without limitation any amounts owed by you that cannot be processed. You are responsible for providing complete and accurate billing and contact information to CbH and notifying us of any changes to such information. You agree to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Except as set forth herein or in your applicable Ancillary Agreement, all payments are non-refundable.
If you sign up as a Creator, you will be required to provide us with information about the account to which Royalties (as defined in the Ancillary Agreement) you may earn should be made. Unless otherwise set forth in your applicable Ancillary Agreement or in the Platform, we will process your applicable Creator payments direct deposit them to your designated account. All payments may be subject to processing fees and the CbH fee, as more fully described in your Ancillary Agreement or elsewhere on the Platform.
5. Electronic Communications
By using the Platform (or any part thereof), you consent to receiving electronic communications from us (including, if you have opted in, via text message) and from other users of the Platform. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Platform and/or the license of your Works. Electronic communications are part of your relationship with us and you agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. Standard carrier data charges may apply to your use of text messaging, and you are solely responsible for such charges.
6. Privacy Policy
We respect the information that you provide to us, and want to be sure you fully understand how we use that information. So, please review our Privacy Policy (“Privacy Policy”), which explains how we use such information. By creating a Platform account, you are expressly consenting to the Privacy Policy.
7. Links To Third-Party Sites
We think links are convenient, and we may provide links on the Platform to third-party websites. If you use these links, you will leave our Platform. We are not obligated to review any third-party websites that you link to from the Platform, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Unless specifically stated on the Platform, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from the Platform, you do so entirely at your own risk and you shall be subject to and must follow the privacy policies and terms and conditions for those third-party websites.
YOU AGREE THAT CBH WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY. Any reference on the Platform to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply CbH's endorsement or recommendation.
8. Unauthorized Activities
As between you and CbH, all rights in the Platform remain our property. We authorize your use of the Platform only for individual, non-commercial purposes (“Permitted Purposes”). Any other use of the Platform beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the Platform.
Unauthorized use of the Platform may result in one or more violations of various United States and international laws. Unless you have written permission from us stating otherwise (including, if applicable, in your Ancillary Agreement), you are not authorized to use the Platform in any unintended, unauthorized or inappropriate way, including but not limited to:
- for any public or commercial purpose which includes use of the Materials on another site or through a networked computer environment;
- in a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of the Platform;
- in a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
- to stalk, harass, or harm another individual;
- to impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
- in a manner that may create a conflict of interest or undermine the purposes of the Services;
- in a manner that infringes any copyright, trademark or other intellectual property or privacy rights of any other person;
- to interfere with or disrupt the Platform or servers or networks connected to the Platform;
- to harvest or collect email addresses or other contact information of other users of the Platform;
- to use any scraping, data mining, robots, or similar data gathering or extraction methods in connection with the Platform; or
- to attempt to circumvent any content filtering techniques we employ or to gain unauthorized access to any portion of the Platform or any other accounts, computer systems, or networks connected to the Platform, whether through hacking, password mining, or any other means.
CbH may temporarily suspend your access to the Platform in the event that you are engaged in, or CbH in good faith suspects you are engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). We will attempt to contact you prior to or contemporaneously with such suspension; provided, however, that our exercise of the suspension rights herein shall not be conditioned upon your receipt of any notification. You agree that CbH shall not be liable to you or any third party if we exercise our suspension rights as permitted by this Section. Upon determining that you have ceased the unauthorized conduct leading to the temporary suspension to our reasonable satisfaction, CnH may, in its discretion, reinstate your access to Platform. Notwithstanding anything in this Section to the contrary, suspension of access to the Platform is in addition to any other remedies that CbH may have under these Terms or otherwise, including but not limited to termination of these Terms and/or, as applicable, any Ancillary Agreement, for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, we may, in our reasonable discretion, determine that such circumstances, taken together, constitute a material breach of these Terms.
You agree to indemnify and hold CbH and its officers, employees, directors, agents and representatives harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, costs, awards, fines, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Platform, your violation of these Terms or your violation of any third-party rights. You alone are responsible for any violation of these Terms by you or by anyone using your account with or without your permission. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.
9. Proprietary Rights
The trademarks, service marks, and logos of CbH (“Our Trademarks”) used and displayed on various parts of the Platform are registered and unregistered trademarks or service marks of CbH. Other company, product, and service names located on our Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with Our Trademarks, the “Trademarks”). Nothing in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Our Trademarks inures to our benefit.
As between CbH and you, all right, title and interest in the Platform, the Materials (other than your Works), and all modifications and enhancements thereof including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by CbH or CbH’s licensees, licensors and providers, as applicable.
Other than as may be provided in an Ancillary Agreement, as between CbH and you, all right, title and interest in the data, other than Works, that you submit, post, display, or otherwise transmit on or to the Platform (“User Data”), belongs to and is retained solely by you. By posting, displaying, sharing or distributing User Data on or through the Platform, you hereby grant to CbH a limited, sublicensable, non-exclusive, royalty-free, worldwide license to reproduce, display, publicly perform, distribute and otherwise use such User Data, and perform all acts with respect to such User Data as may be necessary for CbH to provide its Services. CbH may modify, copy, translate or make any derivative works of User Data in connection with its provision of the Platform as required to format such User Data for presentation within the Platform, to continually improve the Platform and to develop new services and offerings. CbH may license, reproduce, display, publicly perform, distribute and otherwise use your Works as permitted under your applicable Ancillary Agreement(s).
Notwithstanding anything else in these Terms or otherwise, CbH may monitor your use of the Platform and use User Data together with other data and information related to such use, in an aggregated and anonymous manner, including to compile statistical and performance information related to the Platform and its users (collectively, “Aggregated Statistics”). As between CbH and you, all right, title and interest in the Aggregated Statistics, including all intellectual property rights therein and thereto, belong to and are retained solely by CbH. You acknowledge that CbH will be compiling Aggregated Statistics based on User Data and information input by other users into the Platform and you agree that CbH may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify you individually.
10. Disputes Between Users
No agency, partnership, joint venture, or employment is created as a result of these Terms or your use of any part of the Platform. You do not have any authority whatsoever to bind CbH in any respect. The parties agree that CbH is a technology company whose primary business is providing a platform upon which users can license Works for specified purposes. Neither CbH nor any users of the Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other.
Works and User Data uploaded to the Platform are the property of the rightsholders who upload them or on whose behalf they are uploaded. Your interactions with individuals and/or organizations found on or through the Platform, including your decision to use Works, images, information and/or data provided by such individuals and/or organizations, is your decision for which you alone are responsible. You understand and agree that CbH does not and cannot make representations as to the suitability of (i) any Works, images, information and/or data you may access via the Platform; (ii) any individual you may decide to interact with on or through the Platform and/or (iii) the accuracy or suitability of any advice, information, or recommendations made by any user.
IF THERE IS A DISPUTE BETWEEN USERS OF THE PLATFORM, OR BETWEEN ANY USER OF THE PLATFORM AND ANY OTHER THIRD PARTY, YOU ACKNOWLEDGE AND AGREE THAT CBH IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN YOU AND ANY THIRD PARTY, YOU HEREBY RELEASE CBH, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF USER IS A CALIFORNIA RESIDENT, USER WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
11. Intellectual Property Infringement; DMCA Notices
We respect the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing Material that violates intellectual property rights of others, suspending access to the Platform (or any portion thereof) to any user who uses the Platform in violation of someone’s intellectual property rights, and/or, in appropriate circumstances, terminating the account of any user who uses the Platform in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of the Platform, please provide written notice to our agent for notice of claims of infringement:
Created by Humans
Attn: General Counsel
201 Spear Street, 6th Floor
San Francisco, CA 94105
notices@createdbyhumans.ai
To be sure the matter is handled immediately, your written notice must:
- contain your physical or electronic signature;
- identify the copyrighted work or other intellectual property alleged to have been infringed;
- identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
- contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
- contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
- contain a statement that the information in the written notice is accurate; and
- contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the agent will be unable to address the listed concern.
Submitting a Digital Millennium Copyright Act (“DMCA”) Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our agent with a written counter-notification that includes the following information:
1. your physical or electronic signature;
2. identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. a statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in our sole discretion, to terminate the account or access of any user of the Platform who is the subject of repeated DMCA or other infringement notifications.
12. Disclaimer Of Warranties
THE SITE, MATERIALS, AND SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS", AND THE ENTIRE RISK AS TO THEIR USE IS WITH YOU. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SITE, MATERIALS, AND SERVICES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT THE SITE, MATERIALS, AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, MATERIALS, AND SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OR SERVICES OBTAINED THROUGH THE USE OF THE PLATFORM, AND ARE NOT RESPONSIBLE FOR THE PRODUCTS, SERVICES, ACTIONS, OR FAILURE TO ACT OF ANY THIRD PARTY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE PLATFORM OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES SHALL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
13. Limitation of Liability
YOU ARE USING THE SITE, MATERIALS, AND SERVICES AT YOUR SOLE RISK. NEITHER OF CBH, OR ITS LICENSORS (EACH A “LIMITED PARTY”) SHALL BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE PLATFORM OR YOUR USE OF OUR SERVICES OR ANY MATERIALS. IN NO EVENT SHALL A LIMITED PARTY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES RESULTING FROM LOSS OF DATA, REVENUE, PROFITS, COST OF SUBSTITUTE GOODS AND SERVICES, USE, OR OTHER ECONOMIC ADVANTAGE, HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.
NO LIMITED PARTY SHALL BE LIABLE TO YOU FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY YOU TO CBH DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FOR SUCH DAMAGES FIRST ACCRUED.
YOU ACKNOWLEDGE THAT THE TERMS IN THIS SECTION (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
14. Local Laws; Export Control
We control and operate the Platform and provide the Services from our headquarters in the United States of America and the Platform in its entirety or any portion thereof may not be appropriate or available for use in other locations. If you use the Platform (or any portion thereof) outside the United States of America, you are solely responsible for following applicable local laws.
15. Feedback
Any comments, questions, requests, suggestions or other feedback (collectively, “Feedback”) you provide to us through any communication whatsoever (e.g., call, letter, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid-up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. You understand and agree, however, that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
16. Termination
To the fullest extent permitted by applicable law, CbH reserves the right, without notice and in our sole discretion, to terminate your license to use the Platform and to block or prevent your future access to and use of the Platform, including but not limited to where we reasonably consider that: (a) your use of the Platform violates these Terms, any other agreement we have with you or applicable law; (b) you fraudulently use or misuse the Platform; or (c) we are unable to continue providing the Platform to you due to technical or legitimate business reasons. To the fullest extent permitted by applicable law, your only remedy with respect to any dissatisfaction with: (i) the Platform (ii) any term of these Terms; (iii) any policy or practice of CbH, or (iv) any content or information transmitted through the Platform, is to terminate your account and to discontinue use of any and all parts of the Platform.
17. Dispute Resolution And Arbitration; Mass Arbitration; Class Action Waiver
This section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act, and you and CbH each agree that this section is intended to satisfy the “writing” requirement of the Federal Arbitration Act.
THE FOLLOWING TERMS TO WHICH YOU ARE CONSENTING CONSIST OF A PRE-DISPUTE RESOLUTION PROCESS, BINDING ARBITRATION PROVISION, MASS ARBITRATION PROVISION, AND A CLASS-ACTION AND JURY TRIAL WAIVER.
To the fullest extent permitted by law, by using the Platform, you and CbH agree that if a dispute arises between you and CbH relating in any way to the Platform or your use thereof, including common law or statutory claims, the dispute will be resolved in accordance with the provisions set forth in this section. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS YOU AND CBH HAVE AGAINST EACH OTHER ARE RESOLVED. You and CbH agree that any and all disputes or claims that have arisen or may arise between you and CbH in connection with the Platform, including any products or services offered or sold on the Platform and your use of the Platform, shall be resolved exclusively through confidential, final, and binding arbitration; provided that either party may file suit in court seeking to enjoin infringement, misappropriation, or misuse of its intellectual property rights. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY.
Opt-out
You may elect to opt-out (exclude yourself) from the pre-arbitration dispute resolution, final, binding arbitration procedure, mass arbitration procedure, and waiver of class and representative proceedings specified in these Terms by sending a written letter to CbH at Created by Humans, Attn: General Counsel, 201 Spear Street, 6th Floor, San Francisco, CA 94105 (the “Notice Address”), within thirty (30) calendar days of your initial agreement to these Terms. The letter must be signed personally by you or your legal guardian and specify: (1) your first and last name; (2) your mailing address; (3) your email address; and (4) your request to be excluded from the final, binding arbitration procedure and waiver of class and representative proceedings specified in this Section. In the event that you opt-out consistent with the procedures set forth above, all other terms of these Terms shall continue to apply.
Pre-Arbitration Dispute Resolution
You and CbH agree that whenever you or CbH have a disagreement (“Dispute”) with the other arising out of, connected to, or in any way related to the Platform that is subject to the arbitration provision herein, you and CbH will first send a written notice to the other party (a “Demand”). You and CbH agree that the requirements of this Dispute Resolution section will apply even to disagreements that may have arisen before you accepted these Terms. You must send the Demand to the Notice Address. CbH must send the Demand to you via certified mail to the most recent address CbH has on file for you (or by email if CbH only has an email address for you on file). A Demand (1) shall seek to resolve a Dispute only on an individual basis; (2) shall state the full basis for the Dispute (including the details about the Dispute sufficient for the recipient to review and respond) and the date that the Dispute arose; (3) shall provide the individual claimant’s full name, phone number, and email address to confirm their identity and to aid communication; and (4) shall be personally signed by the individual claimant or for CbH by its authorized representative (and not only their counsel). Within twenty (20) business days of receipt of a Demand, the recipient may request an individualized video or telephone conference to attempt in good faith to resolve the Dispute which both you and CbH will personally attend (with counsel, if represented). You and CbH agree that you and CbH will not take any legal action, including filing a lawsuit or demanding arbitration, until after the period to request a conference expires or, if a conference is requested, twenty (20) business days after the individualized conference is completed. Compliance with this informal dispute resolution procedure section is mandatory and a condition precedent to initiating any lawsuit or arbitration. This procedure is essential to providing each of us a meaningful opportunity to resolve Disputes informally. Any applicable limitations periods and filing fee deadlines will be tolled while the parties engage in the process set forth above. A court of competent jurisdiction may enjoin the filing or prosecution of a lawsuit or arbitration if these requirements have not been met.
Arbitration Procedure
If the Dispute stated in the Demand is not resolved to your or CbH’s satisfaction within ten (10) business days after the conference described above (or within ten (10) business days after the time when such a conference may be requested if no conference has been requested), and you intend on taking legal action, you agree that you will file a demand for arbitration with JAMS. The arbitration will be conducted under JAMS’s Comprehensive Rules & Procedures, including the JAMS's Consumer Rules (as applicable), as modified by this Agreement to Arbitrate. The JAMS’s rules and a form for initiating arbitration proceedings are available on the JAMS’s website at: www.jamsadr.com/rules-comprehensive-arbitration. The arbitrator, and not any federal, state, provincial, territorial or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable, except that a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration if the Pre-Arbitration Dispute Resolution requirements set forth above have not been met.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, either you or CbH may elect to have the arbitration conducted by telephone and/or video conference or based solely on written submissions, which election shall be binding on the other party subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at an in-person hearing may be made by telephone and/or video conference, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law.
The arbitrator’s award shall be confidential, final, and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration, and arbitrator fees will be governed by JAMS’s rules.
Class Action Waiver
You and CbH agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and CbH agree otherwise or the Mass Arbitration provisions set forth below are triggered, the arbitrator may not consolidate or join more than one person’s or party's claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). Any relief awarded cannot affect any other person or party. You and CbH further agree that in the event this arbitration agreement is held to be unenforceable for any reason, the prohibitions on class and representative actions and non-individualized relief set forth in this paragraph are severable and shall apply to any claim between you and CbH in any forum. YOU ARE GIVING UP THE RIGHT TO COMMENCE OR PARTICIPATE IN CLASS AND REPRESENTATIVE ACTIONS.
Mass Arbitration
If, at any time, 25 or more claimants (including you) submit Demands or seek to file demands for arbitration raising similar claims against CbH, and such circumstances meet the definition and criteria of Mass Filings (“Mass Filing”) set forth in National Arbitration & Mediation’s (“NAM”) Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM’s Mass Filing Rules”) available at www.namadr.com/resources/rules-fees-forms), you and CbH agree that JAMS shall not serve as arbitrator and that instead NAM shall administer any Mass Filing claims and the NAM Mass Filing Rules in effect at the time such claim is filed shall apply as modified below. The parties agree to the appointment of a Procedural Arbitrator pursuant to NAM’s Mass Filing Rules, and additionally agree that the Procedural Arbitrator will have the authority to determine jurisdiction and arbitrability including, but not limited to, any issue regarding the validity, existence, formation or scope of the agreement under which Arbitration is being sought, and the proper parties to the Arbitration. You agree that throughout this process, the parties’ counsels shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. You acknowledge and agree that your election to participate in a Mass Filing may result in a delay in the adjudication of your dispute with CbH. Any applicable limitations periods and filing fee deadlines will be tolled while the parties engage in the process set forth below.
Stage One: Counsel for the claimants and counsel for CbH shall each select 15 claims per side (30 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and CbH will pay the mediator’s fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for CbH shall each select 20 claims per side (40 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and CbH will pay the mediator’s fee.
If your claim is not resolved as part of the staged process identified above, either:
Option One: You and we may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent with these Terms. You may opt out of arbitration by sending us your individual, personally signed notice of your intention to opt out by certified mail addressed to the Notice Address. Such an opt-out notice must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage Two or the elective mediation associated with Stage Two. We may opt your claim out of arbitration by sending an individual, personally signed notice of our intention to opt out to your counsel within 14 days after the expiration of your 30-day opt out period. Counsels for the parties may agree to adjust these deadlines.
OR
Option Two: If neither you nor we elect to have your claim heard in court consistent with Option One, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 100, then 100 claims shall be randomly selected (or selected through a process agreed to by counsels for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 100, then all of those claims will be filed and proceed in individual arbitrations. Any remaining claims will not be filed or be deemed filed in arbitration, nor will any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 100 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsels for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator, as such term is used in the NAM Rules) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.
You and CbH agree that each party values the integrity and efficiency of arbitration and wishes to employ the process for the fair resolution of genuine and sincere disputes between the parties. You and CbH acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases. If any part of this Mass Arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the NAM rules, then the balance of this Mass Arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision was not contained herein unless the lack of such provision would lead this Mass Arbitration provision to fail of its essential purpose.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim will proceed before JAMS pursuant to the JAMS Mass Arbitration Procedures and Guidelines (available at www.jamsadr.com/mass-arbitration-procedures). If a court of competent jurisdiction also determines that the JAMS Mass Arbitration Procedures and Guidelines are not enforceable as to your Claim, then the remaining Claims shall be subject to Option One or Option Two above as selected by you or us.
18. General
We prefer to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by us, may result in immediate termination of your access to the Platform without prior notice to you. The New York state law and applicable U.S. federal law, without regard to any applicable choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. Any disputes relating to these Terms or the Platform not subject to the arbitration and mass arbitration procedures above will be heard in the courts located in the County of New York in the State of New York. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Our failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and CbH governing your use of the Platform and supersede all prior or contemporaneous negotiations, discussions or agreements between you and CbH about the Platform. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
19. California Consumer Notice
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Platform is provided by Created by Humans, Inc., 201 Spear Street, 6th Floor, San Francisco, CA 94105. If you have a question or complaint regarding the Platform, please contact Customer Service at support@createdbyhumans.ai. You may also contact us by writing Created by Humans, Inc., 201 Spear Street, 6th Floor, San Francisco, CA 94105. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
20. Contact Us
If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at support@createdbyhumans.ai.