Last Updated: December 12, 2023

Thank you for choosing to purchase a right to use those Software Products (as defined below) listed in your Order (as defined below).  This Professional Membership Agreement (this “Agreement”) is entered into between Stability AI Ltd (“Stability” or “Stability AI”) and the person or entity identified on the Order (“You” or “Your”).  This Agreement governs Your access and use of the Software Products that You have purchased a license to install and use via your Order. 

If You purchase a license to the Software Products via an Order or access the Software Products on behalf of a company, organization or other entity, then “You” includes you and that entity, and You represent and warrant that (a) You are an authorized representative of such entity with the authority to bind such entity to this Agreement, and (b) You agree to this Agreement on such entity’s behalf.  If You are accessing or using the Software Products as an individual on behalf of Yourself, You represent and warrant that You are (i) at least thirteen (13) years of age and (ii) of legal age of majority in the jurisdiction where You reside.

By purchasing a license to the Software Products via an Order or accessing the Software Products subscribed to You in an Order, You are agreeing that You have read, understood and are bound by this Agreement, effective as of the date You complete and submit the applicable Order (the “Effective Date”).  If You do not agree to all the terms and conditions of this Agreement, You are not authorized to access or use the Software Products and must immediately cease any use of or access to the Software Products. 

PLEASE NOTE: Sections 10(a) and (b) contain a binding arbitration clause and class action waiver. They affect how disputes are resolved. By agreeing to this Agreement, You agree to resolve all disputes (with limited exceptions) related to this Agreement through binding, individual arbitration and waive Your right to participate in class actions, class arbitrations, or representative actions, as set forth below. 

1. Definitions. All capitalized terms not otherwise defined herein will have the meaning set forth below.

   (a) “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity; for purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

   (b) “Core Model(s)” means the Stability AI proprietary models, algorithms and associated software, including machine-learning models, trained model weights and other elements of the foregoing, listed on the Stability Core Model webpage (and any successor related locations designated by Stability) (“Core Models Webpage”), as may be updated by Stability from time to time. 

   (c) “Customer” or “Your Customer” means anyone who accesses or uses Your Service (i) with whom You have a legal agreement directly (including any of Your customer’s Affiliates covered by such agreement) ("Direct Customer"), or (ii) who is a customer of a Direct Customer with a legal agreement between them to that effect, in sequence (i.e. Your customer through multiple tiers) (“Indirect Customer”).  

   (d) "Derivative Work(s)” means (a) any derivative work of the Software Products as recognized by U.S. copyright laws, and (b) any modifications to a Core Model, and any other model created which is based on or derived from a Core Model or a Core Model’s Output(s). For clarity, Derivative Works do not include the Output(s) of any Core Model. 

   (e) “Documentation” means any specifications, manuals, documentation, and other written information provided by Stability AI related to the Core Models or Software.

   (f) “Entity” means You or Your Customer.

   (g) "License Commencement Date” means the date You complete and submit the applicable Order, unless otherwise indicated in such Order. 

   (h) "Order(s)" means the order form or membership form that You and Stability have agreed to, whether via Stability’s online portal, a mutually executed order form, or otherwise, pursuant to which You agree to license the Software Products from Stability in accordance with the terms and conditions of this Agreement and any additional product-specific limitations or restrictions. Each Order will form part of this Agreement and will be subject to the terms and conditions contained herein.

   (i) “Output(s)” means any media (i.e., images, video, audio) files generated by the Software Products. 

   (j) “Software” means Stability AI software made available under this Agreement and an Order.

   (k) “Software Products” means the Core Models, Software and Documentation, individually, or in any combination, and any Updates thereto made available by Stability AI hereunder.  

   (l) “Stability Technology” means Software Products or Development Tools (defined in Section 2).

   (m) “Stability Trademark Guidelines” means the trademark guidelines provided to You by Stability, including at Stability’s website (and any successor or related locations designated by Stability), as may be updated by Stability from time to time. 

   (n) “Third Party Applications” means separate services or applications (and other consulting services related thereto), procured by You from a party other than Stability that can be used in connection with the Software Products.

   (o) “Updates” means the public release of a new version or update of any Software Products containing improvements, adjustments, filters, enhancements, error-fixes, modifications or similar updates. 

   (p) “User(s)” means employees, consultants, contractors, or agents of an Entity (or that Entity’s Affiliate) who may access or use the Stability Technology solely for that Entity’s benefit, and who are authorized to do so by that Entity in accordance with this Agreement. 

   (q) “Your Customer’s Service” means Your Customer’s software product or service that Your Customer, or a third party on Your Customer’s behalf, makes commercially available that utilizes or embeds the Software Products, or any portion thereof, including all modifications and Derivative Works thereof, however made.

   (r) “Your Service” means Your software product or service that You, or a third party on Your behalf, makes commercially available that utilizes or embeds the Software Products, of any portion thereof, including all modifications and Derivative Works thereof, however made. 

2. Licenses.

   (a) License to Software Products.  During the License Term (as defined below) and subject to the terms of this Agreement including the restrictions hereunder, Stability hereby grants You a worldwide, non-transferable (except as set forth in Section 10(g) (Assignment)), non-exclusive, revocable, and limited right and license to: (i) include and reproduce the Software Products and Derivative Works in Your software or technologies to create and update Your Service; (ii) make Your Service available to, or distribute Your Service to, Your Direct Customers and Your Users; (iii) reproduce, modify, prepare derivative works of, and use the Software Products and any subsequent Derivative Works internally for Your business operations in accordance with the Documentation (You may only exercise this right via Your Users); and (iv) use and reproduce the Documentation to assist You in Your use of the Software Products, Derivative Works or any of Your modifications thereto. 

   (b) General Restrictions. Except as expressly permitted in this Agreement or an Order, You will not (and You will not permit any third party to): (i) sell, re-sell, lease, assign, license, sublicense, distribute, make available, or otherwise transfer in whole or in part the Stability Technology, or any component thereof to any third party (other than to Users and Your Customers to access and use the Software Products as part of Your Service as permitted hereunder and not as a Software API (as defined below) or on a stand-alone basis); (ii) modify or prepare any derivative work based upon the Stability Technology or any component thereof; (iii) reverse engineer, disassemble, or decompile the Stability Technology or any component thereof, or attempt to discover or disclose the source code of the Stability Technology or any component thereof unless it is provided to You in source code form; (iv) encumber, time-share, rent, or lease the rights granted under this Agreement; (v) remove, obscure, or alter any notice of intellectual property rights present on or in the Stability Technology or any component thereof; (vi) make any representations or warranties regarding the Stability Technology that are false or misleading or which exceed those contained in this Agreement, the Documentation, or any marketing materials made available to You; (vii) violate any applicable laws or regulations or Stability’s Acceptable Use Policy, which may be updated from time to time, available at https://stability.ai/use-policy and incorporated herein by reference; (viii) attempt to circumvent, modify, or disable any safety or security measures in the Software Products as specified in the Documentation or provided to You separately by Stability; (ix) provide or submit any data that identifies or can be used to identify a natural person or any other data that may be deemed personal data or personal information under applicable laws or regulations; or (x) pre-install or authorize any original equipment manufacturer (OEM) to pre-install Your Service on any  hardware device prior to its first sale, where hardware devices include, but are not limited to, PCs, mobile phones, consumer electronics, medical devices, etc..

   (c) Restrictions Based on Your or Your Customer’s Service. If Your Service or Your Customer’s Service allows third parties to install, download, rehost, or in any other manner create copies of the Software Products or Derivative Works, such third parties must enter into separate Membership Agreements and Order(s) directly with Stability AI before accessing the Software Products or Derivative Works on Your Service or Your Customer’s Service. Merely serving functions related to the Software Products, Derivative Works, or Outputs thereof, will not constitute an installation, download, rehost, or creating a copy of the Software Products or Derivative Works.  If Your Service or Your Customer’s Service is delivered via an application program interface (“API”) and makes available the Software Products or any Derivative Works (collectively, “Software APIs”), You or Your Customer (as applicable) must enter into a separate Enterprise Membership Agreement and Order directly with Stability AI before providing Your or Your Customer’s Software APIs to any third party, please contact Stability for more information. In addition, You are not authorized to use the Software Products under this Agreement if You have more than $1,000,000 in annual revenue, have received more than $1,000,000 in funding from venture capital investors, institutional investors or other similar investors, or Your Service has more than 1,000,000 monthly active users, and You covenant and agree to notify Stability if You meet any of such criteria. 

   (d) Providing Your Services to Customers and Users. You will be liable for any acts or omissions by Your Customers or any Users in connection with their use of the Software Products, including any acts or omissions that would constitute a breach of this Agreement if committed by You and any such acts or omissions will constitute a breach of this Agreement by You.  With respect to Your Service, Your agreements with Your Users, Your Direct Customers, and Your Direct Customers’ agreements with Indirect Customers (if applicable) must: (i) be no less protective of Stability’s rights and ownership than this Agreement; (ii) not grant greater use or access rights to the Software Products than those rights, licenses and permissions described in this Agreement or an applicable Order; (iii) require the parties to agree that Stability and its licensors (or Your licensors generally) do not grant any warranty and will not have any direct or indirect liability to any Customers or Users; (iv) require the parties to agree that Stability is a third party beneficiary of the agreement and that Stability will have the right (and will be deemed to have accepted the right) to enforce the agreement against the End User or Customer as a third party beneficiary thereof; (v) include substantially and materially similar restrictions to those set forth in Section 2(b) with respect to the Software Products to the extent applicable; and (vi) require Customers to flow requirements (i)-(v) down to their own Customers (i.e. Indirect Customers) (if applicable). You will use best efforts to enforce all the limitations, restrictions and protections in this Section 2(c) with respect to Your Customers and all Users.

   (e) Development Tools. Stability may, in its sole discretion, make available to You for Your convenience certain software tools, software development kits (SDKs), sample applications, testing or benchmarking tools or materials, data, sample code, and similar software for download (“Development Tools”). Such Development Tools will be clearly demarcated as “Development Tools”, are not necessary for the proper functioning of the Software Products, will not be deemed Software Products, and may be licensed to You under separate terms and conditions. In the absence of a separate license agreement for such Development Tools, during the applicable License Term, Stability hereby grants You and Your Users a non-exclusive, royalty-free, non-transferable (except as set forth in Section 10(f) (Assignment)), non-sublicensable worldwide license to: (i) modify and create derivative works of Development Tools unless provided by Stability as compiled byte code or compiled machine code; and (ii) reproduce and use the Development Tools (including modifications thereof made by You per Section 2(d)(i)) for Your internal business operations solely in connection with Your use of the Software Products.

   (f) Trademark License. Each party hereby grants to the other, a non-exclusive, non-transferable (except as set forth in 10(f) (Assignment)), worldwide license, without the right to sublicense, to use, during the term of this Agreement, their respective trademarks, service marks and logos (collectively referred to as “Mark(s)”) on their respective web sites or marketing materials in connection with (i) Stability identifying You as a customer or You identifying yourself as a customer of Stability; and (ii) in mutually agreed-upon collateral sales materials.  Each party will only use and display the other party’s Marks and copyrighted information with the other party’s prior written consent and in accordance with the Stability Trademark Guidelines or Your applicable guidelines as provided to Stability.  Each party will ensure that proper trademark and copyright notices are displayed at all times.  Each party will comply with any reasonable direction given by the other party related to their display of the other party’s Marks. All of the benefit and goodwill associated with a party’s use of the other party’s Marks will inure entirely to the Mark owner. Except as otherwise set forth in this Agreement, neither party may use the other party’s name or Marks in any press releases or other public announcement without the other party’s prior written consent, which may not be unreasonably withheld or delayed. 

   (g) Conditional License. The license rights granted in this Section 2 are subject to and conditioned upon Your compliance with this Agreement (including the Acceptable Use Policy), any applicable Documentation, and any applicable Order.

   (h) Updates; Modifications. Stability may make Updates available on the Core Models Webpage from time to time in its discretion. However, You acknowledge and agree that Your license to the Software Products under any Order is not contingent on the delivery of any future functionality, features or Updates by Stability. Stability is not responsible for any costs required in connection with the implementation of any Updates.  

   (i) Removal. Stability may remove or otherwise make inaccessible certain of its Core Models from time to time in its discretion. If You have previously downloaded and were using such removed Core Models at the time of its removal, You may continue to use such Core Models, including Derivative Works using such Core Models, unless Stability notifies You that Your continued use may, in Stability’s opinion, be infringing or misappropriate the rights of any other person or violate applicable law. 

   (j) No Technical Assistance or Support. No Order includes maintenance, support, installation or training services. Any assistance provided by Stability hereunder will be in its sole discretion and without liability or risk to You, and may be subject to additional fees. Your use of any version of the Software Products that has been removed or that is not the latest version available to You is entirely at Your own risk, and Stability will have no responsibility or liability to you in any way in connection with your use of such older versions. 

3. Intellectual Property Rights.  

   (a) Stability’s Ownership. No title is granted, express or implied, nor will title be deemed assigned, to You hereunder to any of Stability’s data or intellectual property, or any intellectual property of Stability’s licensors; Stability and its licensors retain all right, title, and interest, including all copyright, trade secret, patent, trademark and other proprietary rights, in and to Stability’s Marks and in and to the Stability Technology, and all Updates and other works derivative thereof. Other than Your and Your Customers’ and Users’ rights to access and use the Stability Technology as set forth in this Agreement, no other license or grant of access to the Stability Technology or intellectual property therein is provided to You. All Stability Technology is the property of Stability and will not become Your property. The Stability Technology is licensed and not sold. To the extent You acquire any rights in any Stability Technology, You hereby automatically assign to Stability all right, title and interest in and to such Stability Technology, including all intellectual property rights therein

   (b) Your Ownership. As between You and Stability, You own any Output(s) to the extent permitted by applicable law and under the terms of this Agreement.  Due to the nature of machine learning, Output(s) may not be unique across users and the Software Products may generate the same or similar Output(s). Other users of the Software Products may also offer similar prompts and receive similar Output(s). You acknowledge that generative AI systems may produce similar responses to similar prompts or queries from multiple users and that Your rights in the Output(s) may not be enforceable against other users of the Software Products. No title is granted, express or implied, nor will title be deemed assigned, to Stability hereunder to any of Your intellectual property, or any intellectual property of Your licensors; You and Your licensors retain all right, title, and interest, including all copyright, trade secret, patent, trademark and other proprietary rights, in and to Your Marks and in and to Your Service (excluding the Stability Technology), and all modifications, enhancements, and other works derivative thereof. Other than Stability’s rights to access and use Your Service as set forth in this Agreement, no other license or grant of access to Your Service or intellectual property therein is provided to Stability. 

   (c) Reservation. Stability expressly reserves the right to market and provide the Stability Technology itself or through other resellers, distributors, licensees or agents, and You will not be entitled to any commission or compensation whatsoever in relation to the marketing or provision of the Stability Technology by Stability or its resellers, distributors or agents. 

   (d) Feedback. From time to time, You may provide Stability with verbal and/or written suggestions, comments or other feedback related to Stability’s existing or prospective Stability Technology, including, without limitation, any design input, troubleshooting or other assistance You provide in response to support requests (collectively, “Feedback”). You are not obligated to provide Stability with Feedback. To the extent You or Your Users provide Feedback to Stability, You hereby grant to Stability a perpetual, irrevocable, royalty-free, fully-paid, sub-licensable, transferable (notwithstanding Section 10(f) (Assignment)), non-exclusive, worldwide right and license to exploit the Feedback in any manner without restriction (whether of confidentiality, compensation or otherwise). All Feedback is provided “AS IS” and You make no warranties whatsoever about any Feedback.

4. Confidential Information.  

   (a) Confidential Information Defined. As used herein, “Confidential Information” means non-public information provided under this Agreement that the disclosing party designates at the time of disclosure as being confidential, or, if disclosed orally or visually, is identified as such prior to disclosure, or which, under the circumstances surrounding the disclosure, the receiving party knows or has reason to know should be treated as confidential without the need to be marked as such. Without limiting the foregoing, Confidential Information will include any information regarding a party’s financial condition, business opportunities, plans for development of future products, unreleased versions of products, know-how, technology, and Customer information. The Stability Technology, any pricing information, and the terms and conditions of this Agreement and any Orders will be deemed Stability Confidential Information. Notwithstanding the foregoing, nothing received by a receiving party will be construed as Confidential Information which: (i) is generally available to the public without breach of this Agreement; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is rightfully known to the receiving party prior to such disclosure; or (iv) is, at any time, developed by the receiving party independent of any such disclosure(s) from the disclosing party.

   (b) Non-Disclosure. The parties agree to use all reasonable care to prevent disclosure of the other party's Confidential Information to any third party. Notwithstanding the foregoing, either party may disclose Confidential Information to its employees, consultants, and other third-party providers solely to the extent necessary to exercise its rights or obligations under this Agreement (or any Order), provided that the party has a non-disclosure agreement in place with such third-party provider that protects such Confidential Information against disclosure in a manner no less protective than this Agreement and provided that the each party remains responsible for any breach of this Section 4 by such providers, as if they were that party’s own employees. The foregoing notwithstanding, a receiving party may disclose the other party’s Confidential Information to the minimum extent legally required if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice, obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure, and reasonably cooperate with disclosing party at disclosing party’s request.

   (c) Equitable Remedies. If the receiving party discloses (or threatens to disclose) any Confidential Information of disclosing party in breach of this Section 4, the disclosing party will have the right, in addition to any other remedies available to it, to seek injunctive relief in a court of law to enjoin such acts, without the necessity of proving that other available remedies may be inadequate. 

   (d) Time Limit. Upon any termination or expiration of this Agreement, the receiving party will continue to maintain the confidentiality of the disclosing party's Confidential Information for three years from date of receipt, except that source code will be held in confidence in perpetuity.

5. Fees and Payment.

   (a) Fees. In consideration for the Software Products made available to You by Stability under this Agreement, You agree to pay Stability the fees stated in any applicable Order, including, but not limited to, the recurring license fee (“License Fee”) and any other recurring or non-recurring charges. All fees paid are non-refundable and there are no credits or refunds for partially used periods, in each case, except as specified in Section 6(b) (Mitigation).

   (b) Payment Terms. Unless otherwise agreed in an Order, You agree that the fees stated in any applicable Order will be paid at the time You submit Your Order and Your payment method will automatically be charged at the start of each License Renewal Term and at the then-current License Fee plus any applicable taxes and fees unless You: (i) cancel an Order by written notice at least 14 days prior to the end of the Initial License Term or then-current License Renewal Term, or (ii) cancel through Your “Manage Membership” page on Stability’s website. You represent and warrant that (a) all information You provide with regards to an Order, including, without limitation, credit card or other payment information, is accurate, current and complete and (b) You have the legal right to use the payment method You provide to Stability or its payment processor when completing a transaction. You are responsible for providing and maintaining complete and accurate payment and billing information to Stability. If any undisputed fee payments become past due, Stability reserves the right to temporarily suspend all Software Products usage rights until outstanding payments are paid in full. Stability also reserves the right to charge a fee equivalent to 1.5% per month on all undisputed amounts past due. All payments will be made in the currency designated in the applicable Order, by wire transfer to a bank account to be designated by Stability.  You are free to determine, in Your sole discretion, the prices at which You offer Your Service to Your Customers.

   (c) Taxes. You will be responsible for and will indemnify and hold Stability harmless against all international, country, state, province and/or local taxes of any government, including sales and use tax (exclusive of taxes on Stability’s net income), duties and assessments arising on or measured by amounts payable to Stability or arising out of or measured by amounts sold by You. If any applicable law requires You to withhold amounts from any payments to Stability: (i) You will effect such withholding, remit such amounts to the appropriate authorities and promptly furnish Stability with tax receipts evidencing the payments of such amounts; and (ii) in the event Stability is required to remit the withholding, Stability will make such payment, and the sum payable by You upon which the deduction or withholding is based will be increased to the extent required such that Stability receives the gross amount owed by You notwithstanding such withholding.

   (d) No Set-Off. You will not set-off or offset against the fees You owe to Stability any amounts that You claim are due to You by Stability or any amounts resulting from any billing or collection disputes between You and a Customer.  You will bring any claims or causes of action You may have in a separate action and waive any rights You may have to offset, set-off, or withhold payment for the Software Products delivered by Stability.

   (e) Promotional Codes. Stability may offer promotional codes, referral codes, discount codes or similar offers (“Promotional Codes”) that may be redeemed by You for discounts on the Software Products, subject to this Agreement and any additional terms that Stability establishes in connection with such Promotional Code. You agree that Promotional Codes: (a) may only be used by You if you are the intended recipient of the Promotional Code; (b) may not be duplicated, sold or transferred in any manner, or disclosed or made available by You to the general public (whether posted to a public forum, discount code aggregation site, or otherwise), unless expressly permitted by Stability; (c) may be disabled, withdrawn, or have additional conditions applied to them by Stability at any time for any reason without liability to Stability; (d) may only be used pursuant to the specific terms that Stability establishes for such Promotional Code; (e) are not valid for cash or other credits; and (g) may expire or otherwise only redeemable for a limited period as specified in the Promotional Code offer. You acknowledge and agree that certain Promotional Codes that You use may only provide a discount to the License Fee for the Initial License Term, and that You may be charged the full License Fee without any discounts for any License Renewal Term thereafter.

6. Indemnification.

   (a) Your Obligations. Subject to the remainder of this Section 6, You will: (i) defend and hold harmless Stability and its Affiliates (including Stability’s and its Affiliates’ directors, officers, and employees), against any claim, action, suit or proceeding (each, a “Claim”) brought by a third party (including a Customer or a User) to the extent it is related to: (A) Derivative Works or any modifications to the Software Products created by You or on Your behalf or Your Service, including any intellectual property rights therein and use and performance thereof, respectively, and such Claim would not have arisen but for such modifications or elements of Your Service other than the Software Products; (B) Your, Your Customer’s or any User’s violation of this Agreement, applicable Order, or any applicable law or regulation; (C) an agreement granting access to Your Services between You and Your Customer or between one Customer and another Customer; (D) materials or data supplied by You, Your Customers, or any Users for use alongside the Software Products (including as included in Your Service) (including, without limitation, any product-related documentation that is not Stability Technology); (E) any Claim brought by a Customer or User in connection with this Agreement; or (F) Your failure to switch to using the Updates or modified or replaced Software Products provided to You hereunder or Your failure to cease using the Software Products after termination or expiration of the relevant Order; and (ii) indemnify Stability from any resulting liabilities, losses, damages, penalties, judgments, settlement amounts, regulatory fines, costs and expenses incurred by Stability in connection with such Claim(s).  

   (b) Mitigation. In the defense, settlement, or avoidance of any existing or, in Stability’s opinion, potential claim, including claims related to infringement or misappropriation of a third party’s rights or violation of applicable law, Stability may, at its option and its expense: (i) replace or modify any Software Products with technology that is reasonably comparable to the Software Products being replaced; and/or (ii) obtain a license for You to continue using and receiving the relevant Software Products. If Stability determines in its good faith business judgment that the remedies set forth in clauses (i) and (ii) in the foregoing sentence are not available on commercially reasonable terms, Stability may terminate the relevant Order(s) upon 30 days’ written notice and refund to You a pro-rata portion of any prepaid fees, in which case You will remove such Software Products from Your Services. SUCH REFUND WILL BE YOUR SOLE AND EXCLUSIVE REMEDY IN CASE OF ORDER TERMINATION PURSUANT TO THIS SECTION. 

   (c) Indemnification Procedures. The indemnifying party hereunder will provide the aforementioned obligations in Sections 6(a) or (b) provided that the indemnified party: (i) promptly provides the indemnifying party with notice of such Claim provided that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by a failure to give such notice; (ii) allows the indemnifying party sole control over the defense thereof and related settlement negotiations; and (iii) reasonably cooperates in response to the indemnifying party’s requests for assistance. Neither party may settle or compromise an indemnifiable claim without the indemnified party’s prior written consent, not to unreasonably be withheld.

7. Warranty Disclaimers. 

   (a) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7(a), THE STABILITY TECHNOLOGY AND ITS OUTPUT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  STABILITY DOES NOT REPRESENT THAT YOUR OR YOUR CUSTOMERS’ USE OF THE STABILITY TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE STABILITY TECHNOLOGY OR ITS OUTPUT WILL MEET YOUR OR YOUR CUSTOMERS’ REQUIREMENTS OR THAT ALL ERRORS IN THE STABILITY TECHNOLOGY OR ITS OUTPUT WILL BE CORRECTED. STABILITY HAS NO DUTY OR OBLIGATION TO VERIFY, CORRECT, COMPLETE, OR UPDATE ANY INFORMATION OR MATERIALS DISPLAYED IN OR ARISING OUT OF THE SOFTWARE PRODUCTS. YOU ARE SOLELY RESPONSIBLE FOR THE OUTPUT OF THE SOFTWARE PRODUCTS AND ANY DECISIONS BASED THEREUPON. STABILITY STRONGLY RECOMMENDS THAT YOU HAVE REASONABLE POLICIES AND PRACTICES IN PLACE DESIGNED TO PREVENT THE USE OF ANY OUTPUT IN WAY THAT MIGHT VIOLATE THE LAW OR THE RIGHTS OF OTHERS AND THAT YOU USE ALL THE SAFETY AND SECURITY FEATURES THAT MIGHT BE AVAILABLE IN THE SOFTWARE PRODUCTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, STABILITY MAKES NO ADDITIONAL EXPRESS WARRANTIES AND EXPRESSLY DISCLAIMS AND EXCLUDES, ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

   (b) Third Party Applications. The Software Products may include URL links or integrations with Third-Party Applications to facilitate Your use of such Third-Party Applications, at Your sole discretion. Notwithstanding the foregoing, any procurement or use of Third-Party Applications is solely between You and the applicable third party, and Stability will have no liability for such Third-Party Applications. Stability cannot guarantee the continued availability of such Third-Party Applications or the Software Product’s integration with them, and may cease providing the integrations without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Application ceases to make the Third-Party Application available for interoperation with the Software Products in a manner acceptable to Stability. 

8. Limitation of Liability.

   (a) Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY (INCLUDING ITS DIRECTORS, OFFICERS AND EMPLOYEES) OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR LOSS OF USE OR DATA, COVER, SUBSTITUTE GOODS OR SERVICES, OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGE TO BUSINESS, REPUTATION OR GOODWILL), OR INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

   (b) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO YOUR PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY (INCLUDING ITS DIRECTORS, OFFICERS AND EMPLOYEES) BE LIABLE IN THE AGGREGATE FOR AN AMOUNT EXCEEDING THE FEES PAID BY YOU DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. PAYMENT BY STABILITY OR RETENTION BY YOU OF SUCH DIRECT DAMAGES, AS LIMITED BY THE FOREGOING, IS YOUR SOLE AND EXCLUSIVE REMEDY IN EXHAUSTION OF ALL OTHER REMEDIES UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, AND THE PARTIES AGREE SUCH REMEDY IS NOT AND WILL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE. NEITHER PARTY’S AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS WILL HAVE ANY LIABILITY OF ANY KIND UNDER THIS AGREEMENT. You may not bring a claim under this Agreement more than 18 months after the cause of action arises.

   (c) Exceptions. Notwithstanding Sections 8(a) and 8(b), nothing in this Agreement limits or excludes the liability, obligations, or remedies of a party for: (i) the indemnity obligations hereunder or failure to perform them as specified in Section 6 (Indemnification); (ii) each party’s confidentiality obligations hereunder; or (iii) a violation of one party’s or its licensor’s intellectual property rights by the other party (including breach of the licenses and rights granted herein).

9. Term and Termination.

   (a) License Term. Unless otherwise set forth in the applicable Order, the term for the license of the Software Products that You agree to license from Stability under an Order shall commence as of the License Commencement Date and remain in effect for a period of 1 month (the “Initial License Term”), and will automatically renew following the Initial License Term for consecutive periods of 1 month (each a “License Renewal Term”, and together with the Initial License Term, the “License Term”) and at Stability’s then-current rates unless either party provides the other party with prior written notice of non-renewal at least 14 calendar days before the end of the Initial License Term or then-current License Renewal Term. In addition, Customer may cancel an Order at any time by providing written notice to us or through the “Manage Membership” page on Stability’s website (“Order Cancellation”).  Following any Order Cancellation, You will continue to have access to the Software Products under the terms of this Agreement and the applicable Order through the end of the Initial License Term or then-current License Renewal Term for which payment has already been made. 

   (b) Termination for Breach. Either party may terminate this Agreement, which will include a termination of all Orders, upon written notice if the other party materially breaches this Agreement and fails to correct the breach within 30 calendar days following written notice specifying the breach, except for any breach of Section 2(b)(vii), for which the breaching party shall only have 14 calendar days to correct the breach following written notice specifying the breach. Any breach of Section 2(b) and (c) will be a material breach of this Agreement. In addition, either party may terminate an Order upon written notice if the other party materially breaches this Agreement or the applicable Order and fails to correct the breach within 30 calendar days following written notice specifying the breach, except for any breach of Section 2(b)(vii), for which the breaching party shall only have 14 days to correct the breach following written notice specifying the breach.   

   (c) Effect of Termination. Upon termination or expiration of this Agreement, all outstanding Orders for Software Products will terminate, all of Your payment obligations will become due and payable immediately, all rights and licenses granted to You hereunder will immediately cease, which means among other things that You and Your Customers must immediately cease using the Software Products and any Derivative Works and cease distributing any of Your Services that use or incorporate any Software Products or Derivative Works. Upon termination or expiration of any Order or an Order Cancellation, all of Your Payment obligations will become due and payable immediately and, except as otherwise set forth in Section 9(a), all rights and licenses granted to You that are applicable to such Order will immediately cease, which means among other things that You and Your Customers must immediately cease using the Software Products and any Derivative Works related to such Order. Also upon termination or expiration, each party will return or destroy (or in the case of electronic information, render practically inaccessible) the Confidential Information of the other, including Stability’s Software Products and any Derivative Works. Additionally, each party will cease using the other party’s Marks.  Except as expressly stated herein, termination of this Agreement will not limit either party from pursuing any other remedies available to it, including injunctive relief, nor will such termination relieve any obligation to pay all fees that have accrued or are otherwise owed under this Agreement. The parties’ rights and obligations under Sections 1, and 3-10 will survive the expiration or termination of this Agreement. 

   10. General.

   (a) Governing Law. This Agreement and all relations, disputes, claims and other matters arising hereunder (including non-contractual disputes or claims) will be governed exclusively by, and construed exclusively in accordance with, the laws of the State of New York. To the extent permitted by law, choice of laws rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply. For the purposes of adjudicating any action or proceeding to enforce the terms of this Agreement, the parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, the federal and state courts located in the County of New York within the State of New York. The prevailing party in any claim or dispute between the parties under this Agreement will be entitled to reimbursement of its reasonable attorneys’ fees and costs. The parties waive the right to a trial by jury, to participate in a class or representative action (including in arbitration), or to combine individual proceedings in court or in arbitration without the consent of all parties.

   (b) Disputes and Arbitration. The parties agree to first seek to amicably manage and resolve misunderstandings or disputes by escalating the same to their respective executives for timely consideration. If the dispute is not resolved within 30 calendar days, either party may commence an arbitration proceeding in accordance with this Section 10(b). Any dispute, claim or controversy arising out of or relating to this Agreement (including all Orders) or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be determined by arbitration in New York, New York before one arbitrator. The arbitration will be administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules and subject to the Federal Arbitration Act. Judgment on the award may be entered in any court having jurisdiction. This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator will, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. Each of the Parties shall maintain the strictly confidential nature of the arbitration, including all aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by law. 

   (c) Arbitration (Individuals). This Section 10(c) applies to You only if You are an individual accessing or using the Software Products as an individual on behalf of Yourself and not on behalf of a company, organization or other entity. You have the right to opt-out and not be bound by the arbitration provisions set forth in this Agreement by sending written notice of Your decision to opt-out to legal@stability.ai. Such notice must be sent to Stability within 30 days of Your first Order. If You opt out of only the arbitration provisions and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. If You opt out of these arbitration provisions, Stability also will not be bound by them. If You demonstrate that the filing, administration, and arbitrator costs and expenses owed by You under the American Arbitration Association’s Commercial Arbitration Rules, Stability will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding; provided that if the arbitrator finds that either the substance of Your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then You agree to reimburse Stability for all monies previously disbursed by it that are otherwise Your obligation to pay under the applicable rules. 

   (d) Injunctive Relief. Notwithstanding anything to the contrary herein, any breach of Section 2(b)-(c), Section 3 (Intellectual Property Rights), or Section 4 (Confidential Information) by either party hereunder will result in harm and economic loss to the other party not compensable by monetary damages. Either party will be entitled to immediately seek an injunction against such breach or threatened breach from any court of law having jurisdiction, in addition to other legal or equitable remedies as set forth herein, and without the need to post a bond or other financial security for such injunctive relief. 

   (e) Anti-Corruption. You will not engage in any deceptive or unethical trade practices or any act which might harm Stability’s reputation or the reputation of the Stability Technology. You will comply with all applicable anti-corruption laws and regulations (“Anti-Corruption Laws”) including but not limited to the United States Foreign Corrupt Practices Act and the UK Bribery Act, irrespective of whether You are legally subject to it. You will not cause Stability to violate any Anti-Corruption Laws in connection with any activities related to Stability or Stability Software Products (collectively, the “Activities”).  You will not, in connection with the Activities, pay, offer, promise, or authorize the payment or transfer of anything of value, directly or indirectly, to any other person or entity for the purpose of improperly obtaining or retaining business, for any other advantage for Stability, or for any other purpose prohibited by any Anti-Corruption Laws.

   (f) Export Controls. The Stability Technology is provided subject to the U.S. Export Administration Regulations and the regulations of other jurisdictions (e.g., the European Union).  Diversion contrary to applicable law is prohibited.  Without limiting the foregoing, You warrant that: (i) You are not, and You are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States or other applicable government body has prohibited export transactions (e.g., Iran, North Korea, etc.); (ii) You are not, and You are not acting on behalf of, any person or entity listed on a relevant list of persons to whom export is prohibited (e.g., the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department Denied Persons List or Entity List, etc.); and (iii) You will not use any Stability Technology for, and will not permit any Stability Technology to be used for, any purpose prohibited by applicable law or in any jurisdiction where use of the Stability Technology is prohibited.

   (g) Assignment. Neither party may transfer or assign its rights under this Agreement without the prior consent of the other party. Notwithstanding the foregoing, Stability may assign this Agreement, and such assignment is hereby expressly consented to, in connection with the sale, merger or other corporate combination involving all or substantially all of its assets to a third party provided that the assignee assumes all of the assigning party’s obligations and liabilities hereunder. Any attempted assignment in violation of this paragraph is void. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.  

   (h) Severability. If any provision or part of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable, the parties intend that the court will modify the Agreement to the extent necessary to give effect to the intent manifested by the provision or that part of the Agreement such that the same or substantially the same result is achieved. If any provision or part of this Agreement cannot be made valid and enforceable, the parties intend that the court will sever and delete the illegal, invalid, or unenforceable provision or part from this Agreement, and the remaining provisions or parts of this Agreement will continue in full force and effect.

   (i) Waiver of Breach. No delay or omission by either party to exercise any right or power arising upon the other party’s nonperformance or breach will impair that right or power or be construed as a waiver of it.  Any waiver must be in writing and signed by the waiving party.  A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach.

   (j) Force Majeure. Except for the obligation to make payments, performance under this Agreement will be postponed automatically to the extent that either party is prevented from meeting its obligations by causes beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.

   (k) Notices and Consent to Electronic Communication. You will receive electronic communications and notifications from Stability in connection with the products and services to be provided hereunder and the Agreement generally. If You choose to opt out of receiving such messages, You accept all liability caused by or associated with foregoing such communications. You agree that any such communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Stability may provide You with notices by email to the email address that You registered with (and/or other alternate email address You have provided to Stability), or by regular mail to the address You provide in the Order or otherwise notify us of. You are responsible for updating Your contact information with Stability. You will be deemed to have received any email sent to the email address then associated with Your account when Stability sends the email. All notices and requests in connection with this Agreement required to be given by You to Stability will be given in writing to Stability AI Ltd., c/o Legal, Fora - United House, 9 Pembridge Rd., London, W11 3JY, UK. Unless stated otherwise, all references to a date or time of day in this Agreement are references to that date or time of day in London, England.  If any date specified in this Agreement as the only day, or the last day, for taking action falls on a day that is not a business day, then that action may be taken on the next business day, where business day means a day (a) other than Saturday or Sunday and (b) on which commercial banks are open for business in London, England. 

   (l) Interpretation. The descriptive headings in this Agreement are used solely for convenience and are not intended to affect its meaning or interpretation. The words “including,” “include,” and “includes” are not limiting and are to be read as if they were followed by the phrase “without limitation.” “Sole discretion” means, with respect to any determination to be made under this Agreement by a Party, the sole and absolute discretion of that Party, without regard to any standard of reasonableness or other standard by which the determination of that Party might be challenged. “Commercially reasonable efforts” or “commercially reasonable terms” means, with respect to a given obligation or contractual term, the efforts that a reasonable and prudent person desirous of achieving a result would use in similar circumstances to perform that obligation as promptly as possible consistent with its normal business practices and good-faith business judgment, including the incurrence of reasonable immaterial expenditures or liabilities. 

   (m) No Agency. The parties acknowledge that each is an independent contractor and nothing herein constitutes a joint venture, partnership, or distributor relationship.  You have no right to vary any policies, conditions, representations or warranties made by Stability, and neither party has the right to bind or act for the other as an agent or in any capacity except as expressly provided in writing by amendment to this Agreement.  

   (n) Records. During the term of this Agreement and for two years thereafter, You will retain accurate books and records sufficient to show Your compliance with this Agreement, including documentation with respect to: (a) the purposes for which You and Your Customers use the Software Products; (b) Your annual revenue; (c) the number of monthly active users of each of Your Services; and (d) the aggregate amount of funding You have received from venture capital investors, institutional investors or other similar investors to date. During this period, Stability will have the right to audit Your books and records to verify that You have fulfilled Your obligations under this Agreement, and You will reasonably cooperate with Stability or its third-party auditor (provided such auditor is subject to a confidentiality agreement). Any such audit shall be conducted during normal business hours on a date mutually acceptable to both parties, will not unreasonably interfere with Your business activities, and Stability will provide at least ten (10) business days’ prior notice. The audit shall be conducted at Stability’s expense, unless the audit reveals that You have materially breached Your obligations under Section 2(b)-(c) or that You have materially failed to maintain accurate records. If You have underpaid Stability any sums, You will promptly pay Stability the outstanding amounts due plus interest at a monthly effective rate of 1.5% for the period of the underpayment.  Such audits will not be conducted more than once in any period of 12 consecutive months, or twice during the same time period in the event that an audit reveals a material breach of Your obligations hereunder.  

   (o) Entire Agreement; Modifications. This Agreement, including all schedules and attachments, together with any Orders, contains the complete and exclusive statement of the agreement between the parties with respect to the products and services provided hereunder and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings and negotiations with respect to the subject matter hereof. If there is any conflict or inconsistency between the applicable Order and the Agreement, the Order will control but only to the extent of the conflict. The terms of this Agreement apply to the exclusion of any other terms that You may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Any purchase order submitted by You is for Your internal purposes only and its terms and conditions are superseded and replaced by this Agreement. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless it specifically references this Agreement, explicitly expresses a desire to amend this Agreement, is set forth in writing and is signed by the parties.  Notwithstanding the foregoing, Stability may modify this Agreement from time to time in which case Stability will update the “Last Updated” date at the top of this Agreement, and such updated Agreement will be effective for the following License Renewal Term. It is Your responsibility to review this Agreement from time to time, including prior to each License Renewal Term, to view any such changes. If Stability makes changes to the Agreement that are material, Stability will use reasonable efforts to attempt to notify You. Your continued access or use of the Software Products after the modified Agreement has become effective will be deemed Your acceptance of the modified Agreement. You acknowledge that You have not relied on any statement, promise or representation made or given by or on behalf of Stability that is not set out in this Agreement. Your Orders are not contingent on, and You have not relied on, the delivery of any future functionality regardless of any verbal or written communication about Stability’s future plans.

   (p) No Presumption. The parties acknowledge that the provisions of this Agreement are the language the parties chose to express their mutual intent and hereby waive any remedy and the applicability of any law that would require interpretation of any claimed ambiguity, omission or conflict in this Agreement against the party that drafted it.

   (q) Controlling Language. This Agreement has been prepared and executed in the English language only, which language will be controlling in all respects.  Any translations of the provisions of this Agreement into any other language are for reference only and will have no legal or other effect.  Any notice that is required or permitted to be given by one party to the other under this Agreement must be in the English language and in writing.  All proceedings related to this Agreement will be conducted in the English language. If You are an individual and reside in Canada or You are an entity incorporated or otherwise formed under the laws of Canada, les parties aux présentes ont formellement demandé à ce que la présente convention et tous les documents auxquels cell-ci réfère soient rédigés et signés en langue anglaise.