IMPORTANT: READ CAREFULLY
IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AISTHETIC IS UNWILLING TO LICENSE THE SERVICE TO YOU, NO LICENSE IS GRANTED AND YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE SERVICE.
This Agreement governs your use of the Service only. Any other contractual agreements between You and Aisthetic or between you and any user of the Service remain in effect.
1. Software Delivery and Acceptance
Subject to Your agreement to comply with all terms and conditions of this Agreement, Aisthetic authorizes You to use and access the Service. The Service is deemed accepted by You when you access the Website, download the Software, or access the API. While many portions of the Service are free and may be browsed without creation of a user account, certain features of the Service are subscription-only and require creation of a user account.
2. License Terms and Conditions
Subject to all terms and conditions of this Agreement, Aisthetic hereby grants You a non-exclusive, personal, non-transferable, non-assignable, limited license to use and access the Service in accordance with this Agreement and any and all agreements and documents executed by You or delivered by Aisthetic. The Service is licensed to you, not sold, and Aisthetic reserves the right to revoke such license at any time and disable your ability to use or access the Service for any reason or for no reason.
3. Additional Terms.
3.2 Pricing. If you obtain the right to access the API: (i) via an online marketplace, the pricing and payment terms set forth within the applicable online marketplace apply to your use of the API; or (ii) directly from Aisthetic, your use of the API is subject to the applicable rates set forth on any pricing schedule presented to you when you obtained access to the API, and in either case, the terms of the applicable pricing schedule are incorporated herein by reference. API usage is invoiced on a monthly basis. Aisthetic reserves the right to modify the pricing or features of any subscription plan with respect to any future billing period upon thirty (30) days prior written notice. Aisthetic further reserves the right to discontinue any subscription plan or features of the Service in its sole discretion.
4. Proprietary Rights
The Service is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. All rights in the Service not expressly licensed under this Agreement are reserved to Aisthetic. You shall not reproduce, retransmit, disseminate, sell, publish, broadcast, circulate, rent, lease, sublicense, assign, or otherwise transfer any portion of the Service except as expressly authorized in this Agreement. No right to use any trademark or trade name of Aisthetic is granted to You hereunder other than the right to display the Aisthetic marks that are placed on the Service, in which case such marks may not be altered or removed by You without written approval by Aisthetic.
5. User Content.
Aisthetic may allow you to upload or post audio, video, images, text or other content through the Service (“User Content”). All feedback and other User Content you provide to Aisthetic, whether via the Website, the API, or otherwise, shall be deemed to be non-confidential.
By uploading or posting any User Content to the Service, You hereby grant Aisthetic a non-exclusive, royalty-free, sublicensable license to modify, reproduce, and distribute such User Content for the purposes of: (i) performing any processing you have requested via the Service, and (ii) evaluating and improving Aisthetic’s Service (the “Content License”).
Unless otherwise required by applicable law, Aisthetic does not have the obligation to, and does not, pre-screen any User Content. Aisthetic reserves the right to remove or edit any User Content at any time and without notice to You. When you use the Service, you agree not to upload, post, modify, distribute, email, transmit, or otherwise make available any User Content that:
A. is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise injurious to third parties;
B. is protected by any patent, trademark, trade secret, copyright, or other intellectual or proprietary right, unless you own such rights or have received all necessary consent;
C. impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, or interfere with someone else’s use of the Site;
D. falsely provides a review for a product or element of the Service that you have not purchased or used, or misrepresents your experiences relating to any products or element of the Service;
E. constitutes a charity request, petition for signatures, chain letter, letter or information relating to one or more pyramid schemes, advertising or solicitation for funds, political campaigning, mass mailing, any form of unsolicited commercial email or "spam," or an offering or dissemination of fraudulent goods, services, schemes or promotions;
F. is sent via unsolicited email, if such email could reasonably be expected to provoke complaints from its recipients;
G. is harmful, including without limitation, viruses, Trojan horses, worms, time bombs, zombies, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information; and/or
H. violates any applicable local, state, national or international law.
(collectively “Prohibited User Content”).
6. Further Representations and Warranties
You represent and warrant that You have the necessary rights to any User Content you upload, and that any future use of that content, regardless of how the content is used, will not violate any third-party’s rights.
You represent and warrant the following during your download, installation, and/or use of the Service:
A. You are not located in a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist supporting” country;
B. You are not listed on any U.S. government list of prohibited or restricted parties;
C. You possess all necessary rights to grant the Content License and Aisthetic’s use of User Content in accordance with the terms of the Content License will not violate the rights of any third party; and
D. You will not post any Prohibited User Content.
7. Digital Millennium Copyright Act – Notice & Takedown
If you are a copyright owner and believe that any User Content infringes upon your copyright rights, you may submit a notification to Aisthetic’s Designated Agent at: [email protected] or 453 N Cochran Pl., Spokane, WA 99201. Pursuant to the Digital Millennium Copyright Act 17 U.S.C. Sec. 512(c)(2), such notification must include:
A description of the copyrighted work that you claim has been infringed; a description of where the alleged infringing material is located; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; Your contact information (email and telephone number); and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf. It is Aisthetic's policy to terminate the accounts of users who are repeat infringers or are repeatedly charged with infringement.
8. Third Party Content
Third-Party Content may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws. You may not use such proprietary content, information or materials in any way whatsoever except to use the Service for its intended purposes.
9. Internet Access
Use of the Service requires an internet connection and may result in charges from your cellular service provider. Aisthetic is not responsible for any such charges. Aisthetic is also not liable for any disruption, failure or malfunction of the Internet or other service providers or for any other situation or event that is out of Aisthetic’s direct control. AISTHETIC IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF YOUR CELLULAR COMMUNICATION OR INTERNET SERVICE PROVIDERS, OR UNAVAILABILITY OR ERRORS ASSOCIATED WITH THEIR SYSTEMS OR SERVICES.
10. Restrictions on Use
Unless and to the extent specifically provided otherwise in writing by Aisthetic, you may not:
A. separate any individual component of the Service for use;
B. incorporate any portion of the Service into other software or compile any portion of it in combination with other software;
C. use the Service, or any portion of Service, with any other service or over a network;
D. sell, rent, lease, lend, loan, distribute, assign or sublicense the Service or otherwise transfer any rights to it in whole or in part;
E. modify, reverse engineer, decompile, remove any proprietary notices or disassemble the Service in whole or in part, or create any derivative works from or of the Service, or encourage, assist or authorize any other person to do any of these things; or
F. make copies of or distribute the Service or electronically transfer it or any portion of it from one computer to another or over a network.
We may discontinue some or all of the functionality of the Service at any time. We may also terminate your right to use the Service at any time, and in such event we may modify it to make it inoperable. You agree to abide by all laws and regulations in effect regarding your use of the Service, including without limitation, all driving laws and laws relating to copyright-protected content. You may not authorize or assist any third party to do any of the things prohibited in this paragraph.
Aisthetic may from time to time, in its sole discretion, make updates, modifications, supplements or new versions of the Service or portions thereof available to You under this Agreement for the purpose of, among other things, distributing bug fixes, patches and feature improvements. Aisthetic disclaims any and all liability relating to Your failure to install any updates to the Service or to implement any security or other bug fixes communicated to you by Aisthetic. Notwithstanding the foregoing, Aisthetic does not have any obligation to provide any bug fixes, modifications, updates, or technical or end user support for the Service, unless otherwise agreed in writing.
12. Collection and Use of Data
13. Login Credentials.
You shall not share Your user account information with others or allow third parties to use Your login credentials (including without limitation, your API key) to the Service at any time or for any reason unless otherwise allowed in writing by Aisthetic. You warrant, and Aisthetic may assume and rely on the assumption, that any and all activity and use of the Service under Your user account and API key is done by You. You are solely responsible for maintaining the security of, for example, your username, password, API key and all other user account information, and You agree that Aisthetic will not be liable for any loss or damages resulting from use of your account by others. You shall notify Us immediately of any unauthorized access to or use of Your account information or of Your login credentials.
You shall defend, indemnify, and hold harmless, Aisthetic and its owners, officers, members, managers, directors, shareholders, subsidiaries, joint-ventures, partners, employees, agents, licensors, and licensees from and against any and all claims, actions, suits, proceedings, demands, losses, liabilities, damages, judgments, settlements, penalties, costs, and expenses (including without limitation all reasonable attorneys’ fees), known and unknown, arising out of (i) your use of the Service; (ii) your failure to timely pay for any subscription fees not subject to good faith dispute; (iii) any dispute between you and any other user or users; (iv) your use, creation or posting of Prohibited User Content; (v) your violation or breach of this Agreement including, but not limited to, any representations or warranties made herein, or (vi) the infringement by you, or any other user of your username or account, of any intellectual property or right of any person or entity.
15. Disclaimers; Limitations of Liability
AISTHETIC DOES NOT PROMISE THAT THE SERVICE OR ANY FUNCTIONALITY THEREOF WILL BE ERROR-FREE OR UNINTERRRUPTED OR THAT YOUR USE OF THE SERVICE WILL PROVIDE SPECIFIC RESULTS. THE SERVICE IS PROVIDED BY AISTHETIC “AS-IS” AND “AS-AVAILABLE” WITHOUT ANY OTHER WARRANTY OR REPRESENTATION OF ANY KIND. AISTHETIC CANNOT ENSURE THAT THE SERVICE OR ANY FILES OR OTHER DATA YOU DOWNLOAD IN RELATION TO THE SERVICE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. YOUR USE OF THE SERVICE, AND THE RESULTS AND PERFORMANCE ACHIEVED USING THE SERVICE, IS AT YOUR OWN RISK. AISTHETIC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SERVICE. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AISTHETIC BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, ANY PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF AISTHETIC, AND EVEN IF AISTHETIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, AISTHETIC IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICE, AISTHETIC’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO THE SERVICE PAID TO AISTHETIC IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST AISTHETIC, OR (2) US$200.00. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.
Without limiting its rights and remedies, if You fail to comply with the terms and conditions of this Agreement, Aisthetic may, in its sole discretion, terminate this Agreement upon any such failure. Upon termination of this Agreement, You must promptly cease all use of the Service and discontinue exercising all license rights granted by this Agreement. Sections 2 through 21 of this Agreement will survive any termination of this Agreement.
17. Dispute Resolution; Choice of Law
This Agreement shall be construed and controlled by the laws of the State of Washington without reference to its choice of law provisions, and You consent to exclusive jurisdiction and venue in the federal courts sitting in Spokane, Washington, unless no federal jurisdiction exists, in which case You consent to exclusive jurisdiction and venue in the applicable Washington State Court located in Spokane, Washington. You waive and covenant not to assert all defenses of lack of personal jurisdiction and forum non conveniens.
18. Export Law Compliance
You acknowledge that the Service is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Service, including all applicable U.S. export-control laws and regulations, as well as any end-user, end-use and destination restrictions issued by U.S. and other governments.
19. Other Agreements
This Agreement constitutes an individual consent by You to be bound by the terms of this Agreement and is the entire agreement between You and Aisthetic with respect to Your use of the Service, and any and all other written or oral agreements or understandings previously existing between You and Aisthetic with respect to such use are hereby superseded and cancelled. This Agreement is not intended to supersede or replace any other agreements entered into with Aisthetic by You or Your company. To the extent there are any conflicts or inconsistencies between this Agreement and any other agreement, policy or documentation between You and Aisthetic, the following order of precedence will apply for resolving such conflicts or inconsistences: (i) this Agreement shall control; and then (ii) any other agreements, policies, or documentation.
20. Void Where Prohibited
Although the Service is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Service are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Aisthetic reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or Service to any person or geographic area. Any offer for any feature, product or service made on the Service is void where prohibited. If you choose to access the Service from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
If any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of this Agreement, so that this Agreement shall remain in full force and effect. Aisthetic’s failure to insist on or enforce strict performance of this Agreement shall not be construed as a waiver by Aisthetic of any provision or any right it has to enforce this Agreement, nor shall any course of conduct between Aisthetic and you or any other party be deemed to modify any provision of this Agreement. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties.