Terms of service
Effective Date: July 1, 2024
See previous versions of our Terms of Service in our Archive.
Welcome, and thank you for your interest in CREATOPY INC., a Delaware corporation with a registered office at 8 The Green, Suite R, Kent County, Dover, DE, 19901, including its affiliates (collectively, “Creatopy,” “we,” “us,” or “our”) and our website at www.creatopy.com (our “Site”), along with our related websites or other applications (including the “Creatopy App” available at app.creatopy.com), and other services we provide (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Creatopy regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY SIGNING UP OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING CREATOPY’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND CREATOPY’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY CREATOPY AND BY YOU TO BE BOUND BY THESE TERMS. IF YOU ARE AN ENTITY, ORGANIZATION, OR COMPANY, THE INDIVIDUAL ACCEPTING THESE TERMS ON YOUR BEHALF REPRESENTS AND WARRANTS THAT THEY HAVE AUTHORITY TO BIND YOU TO THESE TERMS AND YOU AGREE TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 18 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND CREATOPY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. CREATOPY SERVICE OVERVIEW. We provide the Service to facilitate an end-to-end creative workflow experience that can be tailored to the business needs—from individuals to brands and agencies—through an intuitive and efficient visual content production platform. As part of the Service, we provide the Creatopy App, to help simplify and automate the way you can create, customize, scale, and publish content for web and print.
2. ELIGIBILITY. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (1) you are at least 18 years old; (2) you have not previously been suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. You further acknowledge and agree that you will be bound by any additional rules or policies published within or with respect to any application forum, contest, or game provided in the Service.
3. ACCOUNTS AND REGISTRATION.
3.1 To access most features of the Service, you must register for an account (a person or entity who has registered for an account is a “User”). When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. Your account is personal to you and is not transferable to any other person. If you permit any other person to access or use your account, then such permission will be deemed a violation of these Terms and Creatopy reserves the right to terminate your account without notice or liability to you. If you believe that your account is no longer secure, then you should immediately notify us at contact@creatopy.com.
3.2 Team Accounts. Our Plans (defined below) may permit users to invite other users to share access to the User Content (defined below) primarily associated with one main user account (such main account, the “Team Account” and such group, a “Team”). The user who owns or controls the Team Account (the “Team Owner”) owns or controls the User Content in the Team Account regardless of the originating user in the Team. The Team Owner accepts responsibility for all activities that occur under the Team Account.
4. GENERAL PAYMENT TERMS.
4.1 Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable except as required by law. We reserve the right to retain all amounts you have paid without any liability to you.
4.2 Service Plans. The Service will be available to Users under different plans for individual or commercial use (each, a “Plan”). Additional terms and conditions may apply for each Plan as set forth on the “Pricing Page” or in other pricing sheets, offers, or materials provided by Creatopy (collectively “Pricing Information”), and are hereby incorporated as part of this Agreement with respect to your use of the Service pursuant to the applicable Plan. Subject to additional terms and conditions set forth in Pricing Information, Creatopy may make available no-cost or free-trial Plans (“Free Plans”) with limited access to features or types and volumes of User Content permissions for upload, creation, download or distribution as set forth in the Pricing Information.
4.3 Price. Creatopy reserves the right to determine pricing for the Service. Creatopy will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our Pricing Page periodically for current pricing information. Creatopy may change the fees for any feature of the Service, including adding additional fees or charges, if Creatopy gives you advance notice of changes before they apply. Creatopy, at its sole discretion, may make promotional offers with different features and different pricing to any of Creatopy’s customers, including Free Trials and Beta Features (defined below). These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.4 Authorization. You authorize Creatopy to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Creatopy, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Creatopy may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.5 Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Creatopy or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our Pricing Page. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Creatopy or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service via your account settings or by contacting customer service at contact@creatopy.com. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
4.6 Delinquent Accounts. Creatopy may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Creatopy reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.
5. LICENSES
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms and any additional terms and conditions of your applicable Plan, Creatopy grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
5.3 Beta Features. Service features clearly identified as beta features made available by Creatopy (“Beta Features”) are provided to you for testing and evaluation purposes only. Creatopy is under no obligation to provide, maintain, or otherwise support Beta Features, including in any future versions of the Service. Creatopy may immediately and without notice remove Beta Features for any reason without liability to you. You are not obligated to use Beta Features. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, ALL BETA FEATURES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WITHOUT ANY PERFORMANCE OBLIGATIONS, AND CREATOPY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS, NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA FEATURES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE CREATOPY’S LIABILITY WITH RESPECT TO THE BETA ACCESS FEATURES SHALL NOT EXCEED $1,000.00.
5.4 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Creatopy an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services, without any further consideration to you. We will have no obligation to provide you with attribution for any Feedback you provide to us.
5.5 Resources Libraries. As part of the Service, Creatopy may make available for your use in connection with the Service certain External Resources and Internal Resources (each as defined below, and together, the “Resource Libraries”), including elements that include artificial intelligence capable of generating text, images or other data using generative models (“GenAI”). The Resource Libraries may indicate applicable sources as appropriate.
(a) External Resources. Subject to the terms of this Agreement, and specifically Sections 7 (THIRD-PARTY TERMS) and 8 (USER CONTENT), the Service may link to or offer functionality to import certain resources (e.g., images, video clips, sound clips, graphic elements, etc.) that are owned or controlled by third-party providers (the “External Resources”). External Resources are subject to additional terms from the applicable licensor, as indicated on the License Terms for Creatopy External Resources page (periodically updated with or without notice to you). External Resources may require additional fees that may be incorporated in the price of a Plan or may be standalone fees and may be limited according to your Plan, as specified in the Pricing Information. The External Resources are not under Creatopy’s control, and, to the fullest extent permitted by law, Creatopy is not responsible for any third party, External Resources licensor’s (i) use of any of your exported information or (ii) content, including any actual or alleged infringement of the foregoing.
(b) Internal Resources. Resources (e.g., images, video clips, sound clips, graphic elements, etc.) that are owned or controlled Creatopy (“Internal Resources”) may be made available to you as Part of the Service, and we hereby grant you a perpetual, non-exclusive, non-transferable, worldwide license to use the Internal Resources solely as part of your User Content. Internal Resources may require additional fees that may be incorporated in the price of a Plan or may be standalone fees, and may be limited according to your Plan, as specified in the Pricing Information. Without limiting anything else in this Agreement, you are strictly prohibited from downloading Internal Resources or redistributing, reselling, or otherwise using them, independently or in similar libraries, except as expressly set forth herein.
5.6 GenAI Resources. The use of GenAI elements falls under the terms of Creatopy Generative AI Use Policy.
5.7 Ad Serving. Your Plan may include Service functionality that allows you to distribute your User Content from the Service to various display advertising networks, in the form of HTML code, based on “cost per mile” (“CPM”), which may be offered as a prepaid package with predefined limits or as a postpaid service based on your level of use as set forth in the Pricing Information. You will be solely and entirely responsible for the User Content you choose to distribute in any way and we may not be held liable for any losses or damages of any kind that you have caused by distributing such content.
5.8 Discussion Groups. As part of the Service, we may invite you to chat or participate in blogs, message boards, online forums, surveys, contests, or similar initiatives (“Discussion Groups”) that may provide you with the opportunity to Post User Content to or via the Service. Any User Content you Post as part of Discussion Groups will be deemed Feedback as defined herein.
6. OWNERSHIP; PROPRIETARY RIGHTS.
The Service is owned and operated by Creatopy. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Creatopy (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Creatopy or its third-party licensors. Except as expressly authorized by Creatopy, you may not make use of the Materials. There are no implied licenses in these Terms and Creatopy reserves all rights to the Materials not granted expressly in these Terms.
7. THIRD-PARTY TERMS
7.1 Third-Party Services and Linked Websites. Creatopy may provide tools through the Service that enable you to export information, including User Content, to third-party services. By using one of these tools, you hereby authorize Creatopy to transfer that information to the applicable third-party service. Third-party services are not under Creatopy’s control, and, to the fullest extent permitted by law, Creatopy is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Creatopy’s control, and Creatopy is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Creatopy will have no control over the information that has been shared.
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. USER CONTENT
8.1 User Content Generally. Certain features of the Service may permit users to create, submit, upload, publish, broadcast, and otherwise transmit (“Post”) material and content to the Service, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
8.2 Limited License Grant to Creatopy. By Posting User Content to or via the Service, you grant Creatopy a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Posted or otherwise used on external services via the Service. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Creatopy’s exercise of the license set forth in this Section.
8.3 Use of Logo and Trade Name. If you are an entity, organization, or company, you hereby grant us a non-exclusive, worldwide, royalty-free license to use your logos and trade names as (“Your Marks”) solely for the purpose of identifying you as a customer of Creatopy in Creatopy’s marketing purposes on our Site and related websites and in digital or printed marketing materials, including, but not limited to, company presentations, case studies, sales pitches, blog posts, customer lists, newsletters, press releases, and testimonials. You represent and warrant that you have the necessary rights and licenses to grant the foregoing license and that such grant does not infringe any third party intellectual property rights.
8.4 Specific Rules for Photographs and Images. If you Post a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty-free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, Facebook, Instagram, and Twitter, but not to promote any third-party product, good, or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
8.5 You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content, including in all ambient music and underlying musical works embodied in any sound recording. To the extent permitted by applicable law, Creatopy disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Creatopy and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Creatopy, the Service, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Creatopy to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.6 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Creatopy may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. To the extent permitted by applicable law, you agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Creatopy with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Creatopy does not permit infringing activities on the Service.
8.7 Monitoring Content. Creatopy does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Creatopy reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Creatopy chooses to monitor the content, then Creatopy still assumes no responsibility or liability for any content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below). Creatopy may block, filter, mute, remove, or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the Service or to any other users of the Service.
9. COMMUNICATIONS.
9.1 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. PROHIBITED USE AND CONDUCT.
10.1 BY USING THE SERVICE, YOU AGREE NOT TO:
(a) harm minors in any way;
(b) upload, post or otherwise transmit any content or material(s) that:
(i) are adult in nature, such as nudity in a sexual context or any content revealing exposed genitalia or including adult themes;
(ii) may promote or encourage hatred towards groups based on race or ethnic origin, religion or creed, parental status, disability, gender, age, sexual orientation/gender identity, citizenship, or any other characteristics protected by law;
(iii) may defame, abuse, harass, stalk, threaten or otherwise violate the any person’s legal rights (such as rights of privacy and publicity);
(iv) may constitute a direct threat of violence against any person or group of people;
(v) are intended for the sole purpose of having them hosted by us and for use outside of User Content;
(vi) may be unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, indecent or otherwise objectionable material of any kind or nature;
(vii) may infringe the intellectual property rights or other rights of third parties, including, but not limited to, trademark, copyright, or right of publicity;
(viii) may contain any malware, viruses, Trojan horses, worms, trap doors, back doors, Easter eggs, time bombs, cancelbots, netbots, corrupted files or any other harmful programs or scripts;
(c) impersonate another person or entity, including, but not limited to, a member or Creatopy official, to falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) promote, encourage, facilitate or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices; harvest or otherwise collect information about others, including e-mail addresses, without their consent;
(e) create User Content such as extreme flashing banners, excessive animated movement, or other types of content that could provoke seizures in unsuspecting viewers;
(f) use the Service in connection with chain letters, junk e-mail, spamming or any duplicative or unsolicited messages (commercial or otherwise);
(g) create a false identity or forged e-mail address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message, or register under a fraudulent account using without right another person’s card information or any other payment method of that person;
(h) use the Service for any illegal purpose or in violation of any local, state, national, or international law, including regarding the transmission of technical data or software exported from the United States through the Service;
(i) interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
(j) interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing, or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law
(k) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
(l) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
(m) harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
(n) interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
(o) download any material that you know, or reasonably should know, cannot be legally distributed in that way or use the Service in bad faith;
(p) access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Creatopy;
(q) violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
(r) sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
(s) attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section.
10.2 Creatopy reserves the right to restrict access to User Content, remove User Content or terminate any account of a User who has violated any of the above-mentioned prohibitions.
11. INTELLECTUAL PROPERTY RIGHTS PROTECTION
11.1 Respect of Third-Party Rights. Creatopy respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
11.2 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
CREATOPY INC.
Attn: Legal Department (IP Notification)
37310 Ruth Dr., Sterling Heights, MI 48312
Email: ip-infringement@creatopy.com
11.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property right that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by Creatopy with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to Creatopy making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.4 Repeat Infringers. Creatopy’s policy is to: (a) remove or disable access to material that Creatopy believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. Creatopy will terminate the accounts of users that are determined by Creatopy to be repeat infringers. Creatopy reserves the right, however, to suspend or terminate accounts of users at our sole discretion.
11.5 Counter Notification. If you receive a notification from Creatopy that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Creatopy with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Creatopy’s Designated Agent through one of the methods identified in Section 11.2 (DMCA Notification), and include substantially the following information:
(a) your physical or electronic signature;
(b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Creatopy may be found, and that you will accept service of process from the person who provided notification under Section 11.2 (DMCA Notification) above or an agent of that person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Creatopy in response to a Notification of Claimed Infringement, then Creatopy will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Creatopy will replace the removed User Content or cease disabling access to it in 10 business days, and Creatopy will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Creatopy’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Creatopy’s system or network.
11.7 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of Creatopy relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Creatopy reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12. MODIFICATION OF TERMS. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 12 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13. TERM, TERMINATION, AND MODIFICATION OF THE SERVICE
13.1 Term. These Terms are effective beginning when you accept the Terms or first access or use the Service, and ending when terminated as described in Section 13.2 (Termination).
13.2 Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Creatopy may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time via your account settings or by contacting customer service at legal@creatopy.com.
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Creatopy any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.4 (Feedback), 6 (Ownership; Proprietary Rights), 13.3 (Effect of Termination), 15 (Disclaimers; No Warranties by Creatopy), 16 (Indemnity), 17 (Limitation of Liability), 18 (Dispute Resolution and Arbitration), and 19 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
13.4 Modification of the Service. Creatopy reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Creatopy will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
14. NETWORK AND SYSTEM SECURITY. Violations of system or network security are prohibited and may result in criminal and civil liability. We will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. You must take reasonable security precautions in light of your use of the Service. You are solely responsible for any breaches of security affecting the servers under your control.
15. DISCLAIMERS; NO WARRANTIES BY CREATOPY
15.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. CREATOPY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CREATOPY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CREATOPY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR CREATOPY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE CREATOPY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
15.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 (DISCLAIMERS; NO WARRANTIES BY CREATOPY) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Creatopy does not disclaim any warranty or other right that Creatopy is prohibited from disclaiming under applicable law.
16. INDEMNITY. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Creatopy, its affiliates, and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Creatopy Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
17. LIMITATION OF LIABILITY
17.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE CREATOPY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY CREATOPY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
17.2 EXCEPT AS PROVIDED IN SECTIONS 18.5 (COMMENCING ARBITRATION) AND 18.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE CREATOPY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO CREATOPY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
17.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. DISPUTE RESOLUTION AND ARBITRATION
18.1 Generally. Except as described in Section 18.2 (Exceptions) and 18.3 (Opt-Out), you and Creatopy agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CREATOPY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to CREATOPY, INC., Attention: Legal Department – Arbitration Opt-Out, 37310 Ruth Dr., Sterling Heights, MI 48312 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Creatopy receives your Opt-Out Notice, this Section 18 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 19.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
18.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Creatopy.
18.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Creatopy’s address for Notice of Arbitration is: CREATOPY, INC., 37310 Ruth Dr., Sterling Heights, MI 48312. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Creatopy may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Creatopy will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Creatopy has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the 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 the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
18.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or Creatopy must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
18.7 Arbitration Relief. Except as provided in Section 18.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Creatopy before an arbitrator was selected, Creatopy will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (c) for judicial review expressly permitted by law or (d) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
18.8 No Class Actions. YOU AND CREATOPY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Creatopy agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
18.9 Modifications to this Arbitration Provision. If Creatopy makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Creatopy’s address for Notice of Arbitration, in which case your account with Creatopy will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
18.10 Enforceability. If Section 18.8 (No Class Actions) or the entirety of this Section 18 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Creatopy receives an Opt-Out Notice from you, then the entirety of this Section 18 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.2 (Governing Law) will govern any action arising out of or related to these Terms.
19. MISCELLANEOUS
19.1 General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Creatopy regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
19.2 Governing Law. These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Creatopy submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New Castle County, Delaware for resolution of any lawsuit or court proceeding permitted under these Terms. We make no representation that Materials included in the Service are appropriate or available for use outside of Delaware.
19.3 Privacy Policy. Please read the Creatopy Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Creatopy Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
19.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
19.5 Translation of the Terms of Service in Other Languages. These Terms may be translated into other languages as well. However, in case of discrepancies or inconsistencies between those versions and the English version, the English one will prevail.
19.6 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
19.7 Contact Information. The Service is offered by CREATOPY, INC., located at 8 The Green, Suite R, Kent County, Dover, DE, 19901. You may contact us by sending correspondence to the following address: 37310 Ruth Dr., Sterling Heights, MI 48312 or by emailing us at contact@creatopy.com.
19.8 Acknowledgment. You acknowledge that (a) you have read and understood these Terms and they represent a binding agreement and/or (b) you have the opportunity to have this Agreement reviewed by a legal counsel, (c) this Agreement has the same force and effect as a signed agreement, and (d) as set forth above, BY SIGNING UP OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND CREATOPY’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY CREATOPY AND BY YOU TO BE BOUND BY THESE TERMS.
19.9 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
19.10 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to applicable Plans.
19.11 International Use. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited. Access to the Service from countries or territories outside of the United States may be subject to localized terms that may differ from these Terms.
