OpenGradient Terms of Service Agreement

Effective Date: October 30, 2024

Please read this Terms of Service Agreement (the “Terms of Service”) carefully. The Terms of Service (together with any Supplemental Terms, as defined below, the “Agreement”) sets forth the terms on which Vanna Laboratories, Inc. (“OpenGradient,” “us,” or “we”) make our website (“Website”) and the services and resources available on or enabled via the Website (collectively with the Website, the “Services”) available to you. The Services enable users of the Website (“Users”) to interact with and upload, deploy, run inference, and license artificial intelligence models and associated documentation (“Models”) hosted on certain third-party decentralized blockchain protocols (each a “Protocol”) in which Users can offer Models, and other Users can license such Models on the terms set forth herein and subject to Model Agreements (defined below).

BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES, CLICKING ON THE “I ACCEPT” BUTTON, CREATING AN ACCOUNT, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH OPENGRADIENT; (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF A COMPANY OR OTHER ENTITY THAT YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE AGREEMENT; AND (4) YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES COMPLIES WITH THE LAWS OF YOUR JURISDICTION. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

The Service provides an interface that allows Users to interact with Protocols. The Protocols are independent, decentralized, open-source, software-based protocols. For the avoidance of doubt, the Protocols are not part of the Website and are not a Service made available by OpenGradient under this Agreement. OpenGradient has no obligation to monitor or control any use of the Protocols by you or any third party. OpenGradient makes no representations or warranties about the functionality of the Protocols. All interactions on the Protocols are undertaken at your own risk, and OpenGradient is not and shall not be liable to you or to any third party for any loss or damage arising from or connected to your or any third party’s use of the Protocols. Notwithstanding anything to the contrary set forth herein, the terms of Sections 11 through 13 of this Agreement apply, mutatis mutandis, to any claims arising out of your interaction with or inability to interact with any Protocol. ANY PROTOCOL MADE AVAILABLE BY US IS MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS” AND YOU ACCESS, INTERACT WITH AND/OR BUILD ON THE PROTOCOLS AT YOUR OWN RISK.

THE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT OPENGRADIENT HAS NO LIABILITY REGARDING THE SERVICES; (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY; YOUR CONSENT TO RELEASE OPENGRADIENT FROM LIABILITY; AND (3) YOUR AGREEMENT TO INDEMNIFY OPENGRADIENT FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES.

SECTION 18 CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND OPENGRADIENT. AMONG OTHER THINGS, SECTION 18 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 18 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 18 CAREFULLY.

UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 18) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 18.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE OR SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.

PLEASE BE AWARE THAT SECTION 2.4 (OPENGRADIENT COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL.

You should print a copy of these terms or save them to your computer for future reference.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY OPENGRADIENT IN ITS SOLE DISCRETION AT ANY TIME AND SUCH CHANGES WILL GOVERN THE SERVICES. When changes are made, OpenGradient will make a new copy of the Terms of Service available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. If we make any material changes, and you have registered with us to create an Account (as defined below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new Users and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Users. OpenGradient may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

MARKETPLACE TERMS: SERVICES CONNECT LICENSEES AND LICENSORS. The Services enable certain Users (“Licensee”) to find, access, and/or license Models from other persons not affiliated with OpenGradient (“Licensor(s)”). Any contract for the license of a Model between a Licensee and a Licensor, whether agreed to on or off the Service (a “Model Agreement”) is between the Licensee and Licensor.
1. Licensor Obligations. In order to offer any Models for license or sale through the Services, the Licensor must make available such Models on the Protocols as set forth on the Services in accordance with our then-current features. Licensor may be able to make content available on the Services from or through a Protocol. When making any Models available for license or sale through the Services, each Licensor represents and warrants to and for the benefit of OpenGradient and any Licensee of such Models that Licensor has all rights necessary in and to such Models to make them available, and that OpenGradient’s and any Licensee’s use of the Models in accordance with the terms of this Agreement and any applicable Model Agreement with any such Licensee will not infringe or misappropriate the intellectual property or other proprietary rights of any third party. Licensor agrees to indemnify and hold OpenGradient and such Licensee harmless from and against any costs, expenses, loss, or damages arising from or related to third-party claims alleging Licensor’s breach of the foregoing representations and warranties.
2. Licensee Obligations. When a Licensee licenses any Models, Licensee agrees to comply with all terms (including any payment terms and term limitations) provided by the Licensor of such Models in the applicable Model Agreement. Unless otherwise explicitly approved by the Licensor in writing, Licensee agrees that all Models are licensed to Licensee for Licensee’s personal or internal business use and, for the avoidance of doubt, may not be resold or made available to third parties on a per-fee basis.
3. Restrictions. You may not use the Services to solicit, advertise for, or contact in any form, Users for employment or any other purpose not related to the Services facilitated through the Website. As a marketplace, we do not personally provide or deliver any of the Models listed on the Services, so the actual Model Agreement for the provision of any Models is directly between the Licensee and the Licensor of such Models.‍
4. Disclaimers. Except as may otherwise be expressly set forth on the Services with respect to specific Models: (a) OpenGradient is not a Licensor of any Models, so the actual Model Agreement for license or sale of any Models is directly between Licensors and the Licensees; and (b) we do not take part in the interaction between Licensees and Licensors. While we may, in our discretion, help facilitate the resolution of disputes through various programs, OpenGradient has no control over and does not guarantee: the existence, quality, safety or legality of Models offered by third-party Licensors; the truth or accuracy of User Content; the ability of Licensors to license or sell Models; the ability of Licensees to pay for Models; or that a Licensee and Licensor will actually complete a transaction. OpenGradient makes no warranties or representations whatsoever with regard to any Models provided by Licensors. You will not consider OpenGradient, nor will OpenGradient be construed as, a party to such transactions, whether or not OpenGradient may have received some form of revenue or other remuneration in connection with the transaction, nor will OpenGradient be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transaction. OpenGradient does not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by Users, Models offered by third-party Licensors, or of the integrity, responsibility, or any actions of any Users. OpenGradient makes no representations about the suitability, reliability, timeliness, or accuracy in public, private or offline interactions. When interacting with other Users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you do not know. NEITHER OPENGRADIENT NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. OPENGRADIENT AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.‍‍
‍Use Of The Services and Models. The Services, including the information and content available on the Website (as these terms are defined herein) are protected by copyright laws throughout the world. The Services include access to the “Platform,” which is a proprietary online platform enabled through the Website and supported documentation made available therewith, that may allow Users to offer and license Models and use an interface to draft transaction messages and otherwise interact with the Protocols. Subject to the Agreement, OpenGradient grants you a limited license solely as described hereunder to access and use the Services and the Platform to interact with Protocols that enable you to procure and/or license Models. Unless otherwise specified by OpenGradient in a separate license, your right to use any and all Services is subject to the Agreement. ‍
1. Models. The Services may provide access to Models, which are made available for access and/or download through the Protocols. Your access to and use of the Models are governed by the terms of the Model Agreement that accompanies or is included with the Models. Model Agreements may be posted with the Models. You shall not use, download, or install any Model that is accompanied by or includes a Model Agreement unless you agree to the terms of such Agreement. OpenGradient shall have no responsibility to deliver the Models to you. Unless the accompanying Model Agreement expressly allows otherwise, any copying or redistribution of the Models is prohibited, including any copying or redistribution of the Models to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the Model Agreement, the Model Agreement shall take precedence in relation to that Model (except as provided in the following sentence). If no Model Agreement accompanies use of the Model, this Agreement will govern use of the Model. ‍
2. OpenGradient Developer Tools. Your use of any software and associated documentation that is made available via the Services (“Developer Tools”) is governed by the terms of the license agreement that accompanies or is included with the Developer Tools, or by the license agreement expressly stated on the Website page(s) accompanying the Developer Tools. These license terms may be posted with the Developer Tools downloads or at the Website page where the Developer Tools can be accessed. Unless you agree to the terms of such license agreement, you shall not use, download, install, access or otherwise utilize in any way any such Developer Tools that are accompanied by or includes a license agreement. At no time will OpenGradient provide you with any tangible copy of our Developer Tools. OpenGradient delivers access to the Developer Tools via electronic transfer or download and does not use or deliver any tangible media in connection with the (i) delivery, installation, updating or problem resolution of any Developer Tools (including any new releases); or (ii) delivery, correction or updating of documentation. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Developer Tools is prohibited, including any copying or redistribution of the Developer Tools to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement, the license agreement takes precedence in relation to that Developer Tool (except as provided in the following sentence). If the Developer Tools are a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Developer Tools for any commercial or production purposes, and you use such pre-release versions of the applicable Developer Tools at your own risk. If you and OpenGradient have not entered into a separate license agreement with respect to your use of the Developer Tools or if no license agreement accompanies use of the Developer Tools, use of the Developer Tools will be governed by this Agreement and, subject to your compliance with this Agreement, OpenGradient grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Website and the Developer Tools for the sole purpose of enabling you to use the Services in the manner permitted by this Agreement. You acknowledge and agree that, unless otherwise set forth in a written license agreement, OpenGradient has no obligation to continue to make the Website and/or any Developer Tools available, and that OpenGradient in its sole discretion may terminate your license to the Website and/or any Developer Tools at any point. Some Developer Tools may be offered under an OSS License (defined below). There may be provisions in the OSS License that expressly override this Agreement.‍
3. Updates. You understand that the Services are evolving. As a result, OpenGradient may require you to accept updates to any Services or any other software that you have installed on your computer. You acknowledge and agree that OpenGradient may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.‍
4. Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Platform and the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of OpenGradient; (c) you shall not use any metatags or other “hidden text” using OpenGradient’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. OpenGradient, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Services terminates the licenses granted by OpenGradient pursuant to the Agreement.‍
5. OpenGradient Communications. By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your use of the Services, updates concerning new and existing features on the Services, communications concerning Promotions (as defined below) run by us or our third-party partners, and news concerning OpenGradient and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. ‍
6. Protocols. OpenGradient does not own or control any third-party Protocol. All use of any Protocol is at your own risk.‍
7. Compatibility Risk. The Services may not be compatible with all forms of cryptocurrency, blockchains, and/or types of transactions. Whether or not a Service is then-currently compatible with a Protocol may change at any time, in OpenGradient’s sole discretion, with or without notice to you.‍
8. Taxes. You are solely responsible (and OpenGradient has no responsibility) for determining what, if any, taxes apply to any activity related to the Services.‍
9. Open Source Software. The Services and certain Models and Content may be made available under, incorporate, or link to certain software made available under an open-source license, as indicated on the Services in connection with such Models or Content (collectively, “OSS”). You acknowledge and agree that any use of such OSS is subject to the terms of the applicable license that accompanies such OSS, which may supersede this Agreement. Nothing in this Agreement limits a User’s rights under, or grants any User any rights that supersede, the terms and conditions of any license applicable to the OSS; nor shall OpenGradient have any liability, whether under this Agreement, at law, or otherwise, for any damages, liabilities, or harm to any person or entity relating to any losses, delays, failures, errors interruptions, or loss of data directly or indirectly arising out of or relating to any OSS. For the avoidance of doubt, nothing set forth herein shall restrict any third party from using any OSS in accordance with the terms of its governing license.‍
10. Third-Party Services. Certain features of the Services may rely on or enable you to access third-party websites, services, technology, or applications accessible or otherwise connected to the Services but not provided by OpenGradient, including without limitation any Protocol, any validator on such Protocol, Digital Wallets, and Models built by you or other Users on or accessed through the Services (each, a “Third-Party Service” and, collectively, “Third-Party Services”). Such Third-Party Services are not under the control of OpenGradient, and OpenGradient is not responsible for any Third-Party Services. OpenGradient provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all Third-Party Services at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. Notwithstanding anything to the contrary in these Terms of Service, you acknowledge and agree that (a) OpenGradient shall not be liable for any damages, liabilities, or other harms in connection with your use of and/or any inability to access the Third-Party Services; and (b) OpenGradient shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions or loss of data occurring directly or indirectly by reason of Third-Party Services or any other circumstances beyond OpenGradient’s control, including without limitation the failure of a Protocol or other Third-Party Service.Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services as applicable. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
ELIGIBILITY; USER REPRESENTATIONS AND WARRANTIES.
1. Eligibility. OpenGradient reserves the right, in its sole discretion, to determine the eligibility of users for the Services. We may require you to provide information and/or documentation to verify or confirm your eligibility, including on a periodic or ongoing basis. Unless prohibited by applicable law, OpenGradient may restrict any individual from accessing the Services at any time.
2. Registration and Account Creation. In order to access and use certain features of the Services, you may need to register or create an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) an email address and password. You agree to provide information required for your use of the Services that is true, accurate, current and complete, and to update such information so it remains true, accurate, current and complete. OpenGradient reserves the rights to establish eligibility criteria to use the Services, and in some cases, at our sole discretion, impose limitations or restrictions on certain Accounts including, but not limited to, deletion of Accounts.
3. User Representations and Warranties. You represent and warrant that:
  1. You are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. If you provide any information that is untrue, inaccurate, not current or incomplete, or OpenGradient has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, OpenGradient has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Services if you have been previously removed by OpenGradient, or if you have been previously banned from any of the Services. If you are acting on behalf of a DAO or other entity, whether or not such entity is formally incorporated under the laws of your jurisdiction, you represent and warrant that you have all right and authority necessary to act on behalf of such entity.
  2. None of: (i) you; (ii) any affiliate of any entity on behalf of which you are entering into this Agreement; (iii) any other person having a beneficial interest in any entity on behalf of which you are entering into this Agreement (or in any affiliate thereof); or (iv) any person for whom you are acting as agent or nominee in connection with this Agreement is: (1) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or any person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (2) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure. There is no legal proceeding pending that relates to your activities relating to buying, selling, staking, or otherwise using cryptocurrency or any other token- or digital asset- trading or blockchain technology related activities;
  3. You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies or token-trading activities, and no investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice relating to cryptocurrency.
4. Digital Wallets. In connection with certain features of the Services you may need to connect a software-based digital wallet (“Digital Wallet”) to the Services and/or use the Services to initiate transactions in cryptocurrency assets (“User Assets”) to or from a Digital Wallet. You represent that you are entitled to use such Digital Wallet. Please note that if a Digital Wallet or associated service becomes unavailable then you should not attempt to use such Digital Wallet in connection with the Services, and we disclaim all liability in connection with the foregoing, including without limitation any inability to access any User Assets. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR DIGITAL WALLET IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH THE PROVIDERS OF SUCH THIRD-PARTY SERVICES, AND OPENGRADIENT DISCLAIMS ANY LIABILITY FOR INFORMATION THAT MAY BE PROVIDED TO IT OR USER ASSETS THAT MAY BE DEPLOYED TO THE PROTOCOL BY OR THROUGH SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE SETTINGS THAT YOU HAVE SET IN SUCH DIGITAL WALLETS.‍
Your Assumption of Risk. ‍
1. Risk of Financial Loss. When you use the Services, you understand and acknowledge that OpenGradient is not a financial or investment advisor and that the Services entail a risk of loss and may not meet your needs. The Services provided by OpenGradient rely on Protocols and the applicable blockchain rules, which may not be reliable, consistent or dependent in all scenarios. OpenGradient may not be able to foresee or anticipate technical or other difficulties which may result in data loss or other service interruptions. ‍
2. Cybersecurity Risks. You understand that like any other software, the Platform and the Services could be at risk of third-party malware, hacks, or cybersecurity breaches. You agree that it is your responsibility to monitor your User Assets regularly and confirm their proper use and deployment consistent with your intentions.‍
3. Expertise and Experience. You represent and warrant that you (a) have the necessary technical expertise and ability to review and evaluate the security, integrity and operation of your Digital Wallet and any Protocols in connection with the Services; (b) have the knowledge, experience, understanding, professional advice and information to make your own evaluation of the merits, risks and applicable compliance requirements under applicable laws of any use of your Digital Wallet and any Protocols in connection with the Services; (c) know, understand and accept the risks associated with your Digital Wallet and any Protocols in connection with the Services; and (d) accept the risks associated with blockchain technology generally, and are responsible for conducting your own independent analysis of the risks specific to your use of the Services. You further agree that OpenGradient will have no responsibility or liability for such risks.‍
4. General Risks of Blockchain Technology. In order to be successfully completed, any transaction or deployment on a Protocol must be confirmed by and recorded on the applicable Protocol. OpenGradient has no control over any Protocol, and therefore cannot and does not ensure that any details that you submit or receive via our Services will be validated by or confirmed on the relevant Protocol, and OpenGradient does not have the ability to facilitate any cancellation, deletion, or modification requests. You accept and acknowledge that you take full responsibility for all activities that you effect through your Digital Wallet and accept all risks of loss, including loss as a result of any authorized or unauthorized access to your Digital Wallet, to the maximum extent permitted by law. You further accept and acknowledge that:
  1. There are risks associated with using digital assets, including but not limited to, the risk of hardware, software and Internet connections; the risk of malicious software introduction; the risk that third parties may obtain unauthorized access to information stored within your Digital Wallet; the risks of counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable; and the risk that such digital assets may fluctuate in value. You accept and acknowledge that OpenGradient will not be responsible for any communication failures, disruptions, errors, distortions, delays, or losses you may experience when using blockchain technology, however caused.
  2. The regulatory regimes governing blockchain technologies, cryptocurrencies, and tokens are uncertain, and new regulations or policies, or new or different interpretations of existing regulations, may materially adversely affect the development of the Services.
  3. OpenGradient makes no guarantee as to the functionality of any blockchain’s decentralized governance, which could, among other things, lead to delays, conflicts of interest, or operational decisions (including without limitation changes to any blockchain rules). You acknowledge and accept that the blockchain rules governing the operation of a Protocol may be subject to sudden changes which may materially alter such Protocol and affect the function and functionality of any Protocol.
  4. OpenGradient makes no guarantee as to the security of any Protocol. OpenGradient is not liable for any hacks, double spending, or any other attacks on a Protocol.
  5. The Protocols are controlled by third parties, and OpenGradient is not responsible for their performance, nor any risks associated with the use thereof. The Services rely on, and OpenGradient makes no guarantee or warranties as to the functionality of or access to, any Protocol or Third-Party Service.
  6. You control your Digital Wallet, and OpenGradient is not responsible for its performance, nor any risks associated with the use thereof.
RESPONSIBILITY FOR CONTENT.
1. Types of Content. You acknowledge that all data, information, and other content (“Content”), including the Services and the Models, are the sole responsibility of the party from whom such Content originated. This means that you, and not OpenGradient, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services and that you and other Users of the Services, and not OpenGradient, are similarly responsible for all Content that you and they make available through the Services (all such Content made available by a User, exclusive of Models, “User Content”). Unless expressly agreed to by OpenGradient in writing elsewhere, OpenGradient has no obligation to store any User Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. ‍
2. No Obligation to Pre-Screen Content. You acknowledge that OpenGradient has no obligation to pre-screen Content (including, but not limited to, User Content), although OpenGradient reserves the right in its sole discretion to pre-screen, refuse or remove any Content. 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 User Content, including without limitation chat, text, or voice communications. In the event that OpenGradient pre-screens, refuses, removes, or limits exposure to any Content, you acknowledge that OpenGradient will do so for OpenGradient’s benefit, not yours. Without limiting the foregoing, OpenGradient shall have the right to remove and limit exposure to any Content that violates the Agreement or is otherwise objectionable.‍
3. Storage. Unless expressly agreed to by OpenGradient in writing elsewhere, OpenGradient has no obligation to store any of your User Content that you make available on the Services. OpenGradient has no responsibility or liability for the deletion or accuracy of any Content, including your User Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to your User Content. You are solely responsible for applying the appropriate level of access to your User Content. If you do not choose, the system may default to its most permissive setting. You agree that OpenGradient retains the right to create reasonable limits on OpenGradient’s use and storage of the Content, including your User Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by OpenGradient in its sole discretion. ‍
4. Regulated Data. ‍
  1. “Regulated Data” means any (i) Social Security numbers or other government-issued identification numbers; (ii) protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) or other information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; (iii) health insurance information; (iv) biometric information or biometric identifiers; (v) credentials to any financial accounts or credit, debit or payment card data subject to the Payment Card Industry Data Security Standard (PCI DSS); (vi) tax return data; (vii) precise geolocation data; (viii) data revealing racial or ethnic origin, religious beliefs, sex life or sexual orientation, union membership, citizenship, or immigration status; (ix) genetic data; (x) personal data collected from an individual under the age of 18; (xi) personal data subject to any foreign data protection laws; (xii) personal data subject to any comprehensive U.S. state consumer privacy laws such as the California Consumer Privacy Act; (xiii) data relating to criminal convictions or offences; or (xiv) online account credentials.
  2. Each User hereby represents and warrants to and for the benefit of OpenGradient and each other User that, unless and to the extent otherwise agreed to by OpenGradient in writing, their User Content will not contain any Regulated Data.‍
‍OWNERSHIP. ‍
1. The Services. Except with respect to User Content, you agree that OpenGradient and its suppliers own all rights, title and interest in the Services, including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and OpenGradient software, as well as all intellectual and proprietary rights related thereto. You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.‍
2. Trademarks. All graphics, logos, service marks and trade names used on or in connection with any the Services or in connection with the Services are the trademarks of OpenGradient and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.‍
3. Your User Content. OpenGradient does not claim ownership of your User Content. However, when you as a User post or publish your User Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. ‍
4. License to your User Content. You grant OpenGradient a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display your User Content (in whole or in part) for the purposes of: (a) operating and providing the Services to you and to our other Users; (b) improving the Services; and (c) developing new products and services. Please remember that other Users may search for and see any of your User Content that you submit to any “public” area of the Services, including on any Protocols. You warrant that the holder of any worldwide intellectual property right, including moral rights, in your User Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not OpenGradient, are responsible for all of your User Content that you make available on or through the Services.
5. ‍Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to OpenGradient through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that OpenGradient has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to OpenGradient a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or OpenGradient’s business.‍
‍USER 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. You shall not (and shall not permit any third party) to either (a) take any action or (b) make available any Content 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, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (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 OpenGradient’s prior written consent; (v) impersonates any person or entity, including any employee or representative of OpenGradient; (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; (vii) manipulates the price of any listed item or interferes with a Licensor listings; (viii) bypasses our robot exclusion hardware, interferes with the working of the Services, or imposes an unreasonable or disproportionately large load on our infrastructure; (ix) uses the Services to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (x) breaches or circumvents any laws, third party rights or our systems or policies; (xi) uses the Service to participate in fundraising for a business, protocol, or platform, except in strict compliance with applicable law (xii) attempts to access any Digital Wallet that you do not have the legal authority to access; or (xiii) attempts to engage in or engages 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.‍
INVESTIGATIONS. OpenGradient may, but is not obligated to, monitor, or review the Services, Models, and Content at any time. Without limiting the foregoing, although OpenGradient does not generally monitor User activity, if OpenGradient becomes aware of any possible violations by you of any provision of the Agreement, OpenGradient reserves the right to investigate such violations. OpenGradient reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content or Models that we deem necessary or appropriate in our sole discretion, including if we believe that such Content or Models violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users of the Services or the public, or could create liability for OpenGradient; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. If OpenGradient becomes aware of any possible violations by you of the Agreement, OpenGradient reserves the right to investigate such violations. If, as a result of the investigation, OpenGradient believes that criminal activity has occurred, OpenGradient reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. OpenGradient is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including your User Content, in OpenGradient’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that your User Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of OpenGradient, its Users or the public, and all enforcement or other government officials, as OpenGradient in its sole discretion believes to be necessary or appropriate.‍
INTERACTIONS WITH OTHER USERS.
1. User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact whether through the Services or on any Protocols; provided, however, that OpenGradient reserves the right, but has no obligation, to intercede in such disputes. You agree that OpenGradient will not be responsible for any liability incurred as the result of such interactions.‍
2. Content Provided by Other Users. The Services may provide access to Protocols that contain User Content (including Models) provided by other Users. OpenGradient is not responsible for and does not control User Content. OpenGradient 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 Users at your own risk.‍
FEES AND PAYMENT POLICY.
1. Fees. Access to the Website and certain Services is free. However, OpenGradient reserves the right to charge fees (“Fees”) in connection with your use of certain Services from time to time. All pricing and payment terms for such Fees are as indicated on the Services, and any payment obligations you incur are binding at the time of the applicable transaction. We may change our Fees from time to time by posting the changes on the Services, as applicable. The new Fee(s) will apply to transactions or purchases that take place on or through the Services after the changes are posted to the Services. You agree that all Fees are non-cancellable, non-refundable, and non-recoupable.
2. ‍Model Agreement Fees. All amounts paid in connection with any Model Agreement are payable in accordance with the terms of such Model Agreement, and you agree to comply with same.
3. ‍Gas Fees. You are solely responsible for ensuring that any payment made by you is sufficient to cover any Gas Fee required to complete any transaction in connection with or effect any other use of the Services. “Gas Fees” are transaction fees determined by market conditions on the applicable Protocols, and are not determined, set, or charged by OpenGradient.‍
4. Third Party Payments Provider. OpenGradient may use one or more third-party service providers for payment services (e.g., card acceptance, cryptocurrency payment processing, merchant settlement, and related services) (a “Payment Processor”). If applicable in connection with your use of the Services, you agree to be bound by the then-current terms and privacy policy of any such Payment Processor, and hereby consent and authorize OpenGradient to share any information and payment instructions you provide with one or more Payment Processor(s) to the minimum extent required to complete your transactions. By listing, leasing, or selling any Models through the Services, you also agree to be bound by the Payment Processor’s terms, as applicable to such use. We may change or add other payment processing services at any time upon notice to you, which may be subject to additional terms or conditions. You understand and agree that OpenGradient itself does not process the transmission of funds and thus it is not a separate and discrete service that OpenGradient provides in addition to the Services.‍
5. Free Trials and Promotional Access. From time to time, OpenGradient may make available certain conditional offers, airdrops, promotional prices, or discounted Fees (each, a “Promotion”) to new or existing Users of the Services. The rules governing such Promotion will be made available in connection with such Promotion. OpenGradient will determine your eligibility for any Promotion in its sole discretion ad may change the terms of or terminate a Promotion at any time, with or without notice to you. ‍
6. Refunds. OpenGradient has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by OpenGradient, in each case in OpenGradient’s sole discretion.‍
7. Taxes. If any Services, or payments for any Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to OpenGradient, 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 OpenGradient for any liability or expense OpenGradient may incur in connection with such Sales 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.‍
8. Currency. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay any Fees. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse your obligations with respect to any purchase.
9. ‍Payment Processing Services. OpenGradient may add or change any payment processing services at any time. Such services may be subject to additional terms or conditions.‍
RELEASE. OpenGradient expressly disclaims any liability that may arise between Users of the Services. You hereby release OpenGradient, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any Users (collectively, the “OpenGradient Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services or any disputes you may have with any other User(s).

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 OpenGradient Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.‍
INDEMNIFICATION. You agree to indemnify and hold the OpenGradient 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 User Content; (b) your use of, or inability to use, the Services; (c) your violation of the Agreement, including any of your representations or warranties hereunder; (d) your violation of any rights of another party, including any other Users; (e) your violation of any applicable laws, rules or regulations; or (f) any Model provided, purchased or licensed by you or any third party. OpenGradient 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 OpenGradient in asserting any available defenses. This provision does not require you to indemnify any of the OpenGradient Parties for any unconscionable commercial practice by such OpenGradient Party or for such OpenGradient 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 the Agreement and/or your access to the Services.‍
DISCLAIMER OF WARRANTIES AND CONDITIONS.
1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. OPENGRADIENT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
  1. OPENGRADIENT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (iv) ANY MODELS UPLOADED THROUGH THE SERVICES TO A PROTOCOL AND/OR ACCESSED THROUGH THE SERVICES, INCLUDING THIRD-PARTY SERVICES, WILL MEET YOUR REQUIREMENTS OR FUNCTION AS INTENDED. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. OPENGRADIENT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PROTOCOLS OR YOUR USE OF THE SAME. ALL INTERACTIONS ON THE PROTOCOLS ARE UNDERTAKEN AT YOUR OWN RISK, AND OPENGRADIENT IS NOT AND SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OR DAMAGE ARISING FROM OR CONNECTED TO YOUR OR ANY THIRD PARTY’S USE OF THE PROTOCOLS. THE OPENGRADIENT PARTIES MAKE NO REPRESENTATION THAT THE SERVICES WILL BE FREE OF THIRD-PARTY MALWARE, HACKS, OR OTHER CYBERSECURITY BREACHES.
  2. ANY CONTENT, INCLUDING MODELS, DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES OR ANY PROTOCOL IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
  3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. OPENGRADIENT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
  4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OPENGRADIENT OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.‍
2. OPENGRADIENT IS NOT AN INVESTMENT OR FINANCIAL ADVISOR. NEITHER OPENGRADIENT NOR ITS SUPPLIERS OR LICENSORS SHALL BE RESPONSIBLE FOR INVESTMENT AND OTHER FINANCIAL DECISIONS, OR DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE SERVICES OR THE PROTOCOLS. NEITHER OPENGRADIENT NOR ITS SUPPLIERS OR LICENSORS SHALL BE CONSIDERED AN “EXPERT” UNDER THE APPLICABLE SECURITIES LEGISLATION IN YOUR JURISDICTION. NEITHER OPENGRADIENT NOR ITS SUPPLIERS OR LICENSORS WARRANT THAT THIS WEBSITE COMPLIES WITH THE REQUIREMENTS OF ANY APPLICABLE REGULATORY AUTHORITY, SECURITIES AND EXCHANGE COMMISSION, OR ANY SIMILAR ORGANIZATION OR REGULATOR OR WITH THE SECURITIES LAWS OF ANY JURISDICTION.
3. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT OPENGRADIENT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD OPENGRADIENT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND PROTOCOLS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. OPENGRADIENT SHALL BE UNDER NO OBLIGATION TO INQUIRE INTO AND SHALL NOT BE LIABLE FOR ANY DAMAGES, OTHER LIABILITIES, OR HARM TO ANY PERSON OR ENTITY RELATING TO ANY LOSSES, DELAYS, FAILURES, ERRORS, INTERRUPTIONS, OR LOSS OF DATA OCCURRING DIRECTLY OR INDIRECTLY BY REASON OF CIRCUMSTANCES BEYOND OPENGRADIENT’S CONTROL, INCLUDING WITHOUT LIMITATION THROUGH THE DEPLOYMENT OF MODELS TO ANY PROTOCOL IN CONNECTION WITH THE SERVICES.
  1. OpenGradient makes no warranty that the Models provided by third parties will meet your requirements or be available on an uninterrupted, secure, or error-free basis. OpenGradient makes no warranty regarding the quality of any such goods, or the accuracy, timeliness, truthfulness, completeness, or reliability of any User Content obtained through the Services.‍
4. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT OPENGRADIENT DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. OPENGRADIENT MAKES NO WARRANTY THAT THE MODELS OR ANY OTHER GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. OPENGRADIENT MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH MODELS, GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.‍
5. No Liability in Connection with Open-Source Software. Notwithstanding anything to the contrary in these Terms of Service, you acknowledge and agree that any software or services you access under the terms of an OSS license is at your own risk, and OpenGradient shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions or loss of data occurring directly or indirectly by reason of circumstances outside beyond OpenGradient’s control, including without limitation through your use of any Content under the terms of an OSS license.‍
6. Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for OpenGradient to monitor such materials and that you access these materials at your own risk.‍
7. Beta Features. FROM TIME TO TIME, OPENGRADIENT MAY OFFER NEW “BETA” FEATURES, “TESTNETS,” “DEVNETS,” OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT OPENGRADIENT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.‍
LIMITATION OF LIABILITY. ‍
1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL OPENGRADIENT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT OPENGRADIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) LOSS OR DIMINISHMENT IN VALUE OF USER ASSETS, (b) THE USE OR INABILITY TO USE THE SERVICES, INCLUDING ANY MODEL; (c) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (d) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (e) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION ANY PROTOCOL; (f) ANY USE OF THE PROTOCOLS; OR (g) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A OPENGRADIENT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A OPENGRADIENT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A OPENGRADIENT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. ‍
2. Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, OPENGRADIENT PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO OPENGRADIENT BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A OPENGRADIENT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A OPENGRADIENT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A OPENGRADIENT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.‍
3. User Content. EXCEPT FOR OPENGRADIENT’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN OPENGRADIENT’S PRIVACY POLICY, OPENGRADIENT ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.‍
4. Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.‍
5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OPENGRADIENT AND YOU.‍
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is OpenGradient’s policy to terminate a User’s access to the Services for any User who repeatedly infringes copyright upon prompt notification to OpenGradient by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written 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; and (f) 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 authorized to act on the copyright owner’s behalf. Contact information for OpenGradient’s Copyright Agent for notice of claims of copyright infringement is as follows: legal@opengradient.ai‍
TERM AND TERMINATION.
1. Term. The Agreement commences on the date when you accept these terms (as described in the preamble above) and remains in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.‍
2. Prior Use. 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 that the Agreement will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.‍
3. Termination of Services by OpenGradient. OpenGradient reserves the right to terminate this Agreement and your access to the Services at any time, for any or for no reason, with or without notice to you. ‍
4. Effect of Termination. Termination of the Services includes removal of access to such Services and barring of further use of the Services. Termination of all Services may also include deletion of your User Content associated therewith from our live databases. OpenGradient will not have any liability whatsoever to you for any suspension or termination, including for deletion of your User Content. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, indemnification, and limitation of liability.‍
5. No Subsequent Registration. If your ability to access, the Services is discontinued by OpenGradient due to your violation of any portion of the Agreement, then you agree that you shall not attempt to re-register with or access the Services through any means, and you acknowledge that you will not be entitled to receive a refund for Fees related to those Services to which your access has been terminated.
‍International Users. Services may be accessible from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that OpenGradient intends to announce such Services or Content in your country. OpenGradient makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.‍
ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with OpenGradient and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and OpenGradient agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any Models sold or distributed through the Services, or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and OpenGradient may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or OpenGradient may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.‍
2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and OpenGradient. If that occurs, OpenGradient is committed to working with you to reach a reasonable resolution. You and OpenGradient agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and OpenGradient therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to OpenGradient that you intend to initiate an Informal Dispute Resolution Conference should be sent by mail to our offices located at One World Trade Center, Suite 77D, NY, NY 10007. The Notice must include: (a) your name, telephone number, mailing address; (b) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (c) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple Users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.‍
3. Waiver of Jury Trial. YOU AND OPENGRADIENT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and OpenGradient are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
4. ‍Waiver of Class and Other Non-Individualized Relief. YOU AND OPENGRADIENT AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 18.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 18.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and OpenGradient agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or OpenGradient from participating in a class-wide settlement of claims.‍
5. Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and OpenGradient agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (a) the name, telephone number, mailing address, and e‐mail address of the party seeking arbitration; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (d) a statement certifying completion of the Informal Dispute Resolution Conference process as described above; and (e) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and OpenGradient otherwise agree, or the Batch Arbitration process discussed in Section 18.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
  
  You and OpenGradient agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.‍
6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 18.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.‍
7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (a) all Disputes arising out of or relating to Section 18.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 18.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 18.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (b) except as expressly contemplated in Section 18.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (c) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (d) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 18.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.‍
8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or OpenGradient need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.‍
9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and OpenGradient agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against OpenGradient by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (a) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (c) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by OpenGradient. You and OpenGradient agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.‍
10. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: One World Trade Center, Suite 77D, NY, NY 10007, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.‍
11. Invalidity, Expiration. Except as provided in Section 18.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with OpenGradient as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.‍
12. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if OpenGradient makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to OpenGradient at One World Trade Center, Suite 77D, NY, NY 10007, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. OpenGradient will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.‍
GENERAL PROVISIONS.
1. Electronic Communications. The communications between you and OpenGradient may take place via electronic means, whether you visit the Services or send OpenGradient e-mails, or whether OpenGradient posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from OpenGradient in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that OpenGradient provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).‍
2. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without OpenGradient’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.‍
3. Force Majeure. OpenGradient shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If a force majeure event occurs that affects OpenGradient’s performance of its obligations under the Agreement: (a) OpenGradient will contact you as soon as reasonably possible to notify you; and (b) OpenGradient’s obligations under the Agreement will be suspended and the time for OpenGradient’s performance of its obligations will be extended for the duration of the force majeure event. You may cancel the Services affected by a force majeure event which has continued for more than 30 days. To cancel please contact OpenGradient.‍
4. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to any Services, please contact us at the contact information set forth in Section 19.9. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.‍
5. Limitation Period. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND OPENGRADIENT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEARAFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
6. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and OpenGradient agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware.‍
7. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF MODELS DOES NOT APPLY TO THE AGREEMENT. ‍
8. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
9. ‍Notice. Where OpenGradient requires that you provide an e-mail address, you are responsible for providing OpenGradient with your most current e-mail address. In the event that the last e-mail address you provided to OpenGradient is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, OpenGradient’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to OpenGradient at the following address: One World Trade Center, Suite 77D, NY, NY 10007. Such notice shall be deemed given when received by OpenGradient by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.‍
10. Waiver. 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.‍
11. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.‍
12. Export Control. You may not use, export, import, or transfer the Services or any Models except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the applicable Services or Models, and any other applicable laws. In particular, but without limitation, the Services and Models may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services or any Models for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by OpenGradient are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer OpenGradient products, services or technology or any Models made available thereby, either directly or indirectly, to any country in violation of such laws and regulations.‍
13. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.‍
14. Independent Contractors. The relationship of OpenGradient and you under this Agreement is that of independent contractors. Notwithstanding anything else set forth herein, neither party will be deemed to be an employee, agent, partner, or legal representative of the other for any purpose and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other. Your use of the Services shall not imply, suggest, or otherwise attempt to create an employment relationship between OpenGradient and you.
15. ‍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.‍
INTERNATIONAL PROVISIONS. The following provisions shall apply only if you are located in the countries listed below.
1. ‍United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.‍
2. Germany. Notwithstanding anything to the contrary in this Agreement, OpenGradient is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).