Recraft Inc.
Last updated: April 29, 2024
Effective as of: April 29, 2024
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
THE TERMS AND CONDITIONS SET FORTH BELOW (THE "TERMS") GOVERN YOUR USE OF THE WEBSITE LOCATED AT RECRAFT.AI (THE "SITE") AND ANY SERVICES AVAILABLE ON THE SITE (COLLECTIVELY, THE “SERVICES”). THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND RECRAFT AND GOVERN YOUR ACCESS TO, AND USE OF, THE SERVICES AND THE SITE. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, THE SERVICES OR ANY INFORMATION CONTAINED ON THIS SITE. YOUR USE OF THIS SITE AND/OR THE SERVICES WILL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. WE MAY MAKE CHANGES TO THE CONTENT AND THE SERVICES OFFERED AT ANY TIME BY POSTING UPDATED TERMS OF USE ON THE SITE(S) AND BY SENDING REGISTERED USERS AN EMAIL NOTICE OF THE CHANGES. WE MAY ALSO IMPOSE LIMITS ON CERTAIN FEATURES AND SERVICES OR RESTRICT YOUR ACCESS TO PARTS OR ALL OF THE SERVICES WITHOUT NOTICE OR LIABILITY. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU WILL CEASE USING THE SITE(S). IF YOU DO NOT CEASE USING THE SITE(S), YOU WILL BE DEEMED TO HAVE ACCEPTED THE CHANGE.
RECRAFT MAY, IN ITS SOLE DISCRETION, REFUSE TO OFFER THE SERVICES TO ANY PERSON OR ENTITY AND CHANGE ITS ELIGIBILITY CRITERIA AT ANY TIME. THIS PROVISION IS VOID WHERE PROHIBITED BY LAW, AND THE RIGHT TO ACCESS THE SERVICES IS REVOKED IN SUCH JURISDICTIONS. USE OF THE SERVICES IS ALSO SUBJECT TO RECRAFT’S PRIVACY POLICY, WHICH MAY BE FOUND AT HTTPS://APP.RECRAFT.AI/PRIVACY (“PRIVACY POLICY”) AND WHICH IS INCORPORATED INTO THESE TERMS BY THIS REFERENCE. THE SERVICES ARE AVAILABLE TO NATURAL PERSONS, ONLY, INCLUDING NATURAL PERSONS ACTING AS AUTHORIZED REPRESENTATIVES OF LEGAL ENTITIES.
YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE OF LEGAL AGE TO ENTER INTO THE TERMS, OR, IF YOU ARE NOT, THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO AND AGREE TO THESE TERMS. IF YOUR ACCEPTANCE OF THESE TERMS IS ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY AS WELL AS TO YOURSELF. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SITE OR THE OTHER SERVICES.
The Mandatory Arbitration Provision and Class Action Waiver. The provisions in the section entitled Governing Law, Dispute Resolution, Class Action Waiver, Arbitration Agreement, below, govern the resolution of disputes between you and Recraft. Please read the provision carefully. If you do not agree with these Terms, including the Mandatory Arbitration Provision and class action waiver, and if you have not opted out as allowed herein, please do not use the Site or Services.
Recraft utilizes artificial intelligence systems to produce certain digital content that is generated by users through the Services (such content, (“Assets”). In order to use the Services, you must register through the Site. There are two tiers of membership, one does not require any payment (“Free Tier”) and the other is a paid subscription. Users of the Free Tier have limited rights. When you register on the Site, you are asked to create your own profile. Your profile includes, but is not limited to, personal information such as your user name, your email and general information you wish to disclose about yourself. Upon successful registration, you become a member of the Website (a “Member”), and for as long as you remain a Member, you agree to comply with the then applicable Terms. All Services are licensed and not sold. Each user must have a unique account, and you are responsible for any activity conducted on your account. You must not make available to other people your account username or password or otherwise share with other people access to your account. A breach or violation of any of these Terms may result in an immediate termination of your right to use the Services and Recraft reserves the right to ban you and any IP address or other identifier associated with you or your account.
We process and store information in the United States and other countries. By using our Services you authorize Recraft to transfer your personal information across national borders and to other countries where Recraft and its partners operate.
The Site may contain hyperlinks to web sites that are not controlled by Recraft. You acknowledge and agree that Recraft is not responsible for and does not endorse or accept any responsibility over the content or use of these web sites, including, without limitation, the accuracy or reliability of any information, data, opinions, advice or statements made on these web sites. You further understand that such third party sites and third party services are governed by separate agreements accompanying such portions of the Services and You agree to be bound by the terms and conditions of such agreements. Your dealings with other entities promoted on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such other entity. You agree that Recraft will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities through the Services.
Recraft offers free and paid Services. You can learn more about Recraft’s paid subscription offering by contacting [email protected]. You can sign up for a monthly subscription, payable in U.S. dollars, that will automatically renew on a monthly basis, or for a yearly subscription, payable in U.S. dollars, that will automatically renew on a yearly basis. You can stop using the Services and cancel your subscription at any time through the website or by emailing Recraft at [email protected]. If you cancel your subscription, or if Recraft has terminated your right to use the Services because of a breach or violation of any of these Terms, you will not receive a refund or credit for any amounts that have already been billed or paid. Recraft reserves the right to change its prices at any time. If you are on a subscription plan, changes to pricing will not apply until your next renewal or thirty (30) days after our notice to you, whichever is later.
Unless otherwise stated, your subscription fees (“Fees”) do not include federal, state, local, or any foreign taxes, duties, and other similar assessments (“Taxes”). You are responsible for all Taxes associated with your purchase of a subscription and Recraft may invoice you for such Taxes. You agree to timely pay such Taxes and provide Recraft with documentation showing the payment or additional evidence that Recraft may reasonably require. If any amount of your Fees is past due, Recraft may suspend your access to the Services after Recraft provides you with written notice of late payment. You may not create more than one account to benefit from the Free Tier of Recraft’s Services. If Recraft believes you are not using the Free Tier in good faith, Recraft may charge you standard fees or terminate your access to the Services.
Free Tier. Subject to your compliance with these Terms, the conditions herein, and any applicable laws or other limitations, if you do not have a paid subscription to the Services and are a Free Tier Member, Recraft grants you a non-exclusive, limited, non-transferable, non-sublicensable, non-assignable, freely revocable license to access and use the Services for personal use and you are granted a non-exclusive, limited, non-transferable, non-sublicensable, non-assignable, license to use all Assets you create with the Services for your personal or commercial use. Assets generated by Free-tier users (“Free Tier Assets”) You agree that any Free Tier Assets you create as a Free Tier user are owned by Recraft and you hereby irrevocably transfer and assign to Recraft all worldwide right, title and interest in and to the Free Tier Assets, and the complete right to exploit or otherwise use the Free Tier Assets or any portion thereof, in any form of medium, expression or technology now known or hereafter known or developed, and all contract and licensing rights. You further agree to perform all acts deemed reasonably necessary or desirable by Recraft to permit and assist Recraft, at Recraft’s expense, to obtain and enforce the full benefits throughout the world of your assignment of all right, title and interest in the Free Tier Assets to Recraft, including, but not limited to, execution of documents and assistance or cooperation in the registration and enforcement of any intellectual property rights throughout the world. If moral rights are not permitted to be transferred to any third party under applicable laws, you agree that you will not exercise moral rights against Recraft, its agents, licensees and assigns without further compensation or additional consent.
Paid Subscription. Subject to your compliance with these Terms, the conditions herein, and any applicable laws or other limitations, if you have a paid subscription to the Services Recraft grants you a non-exclusive, limited, non-transferable, non-sublicensable, non-assignable, freely revocable license to access and use the Services for business or personal use you own all Assets you create with the Services; and Recraft hereby assigns to you all rights, title, and interest in and to such Assets that Recraft may have, for your personal or commercial use.
Community Assets. Recraft may choose to make available certain Assets owned or licensed by Recraft, including Free Tier Assets, as part of a community gallery (“Community Assets”). Subject to your compliance with these Terms, the conditions herein, and any applicable laws or other limitations, Recraft grants you a non-exclusive, limited, non-transferable, non-sublicensable, non-assignable, license to use Community Assets for your personal or commercial use.
Reservation of Rights. Recraft reserves all rights not expressly granted under these Terms.
Licenses to Recraft. By using the Services, you grant to Recraft and its successors and assigns a perpetual, worldwide, non-exclusive, sublicensable, fully paid, royalty-free, irrevocable license to use, copy, reproduce, process, adapt, modify, publish, transmit, prepare derivative works of, publicly display, publicly perform, sublicense, or distribute, or any combination of the foregoing, text prompts and images you input into the Services or Assets produced by the Services at your direction, or both, solely as necessary for Recraft (i) to provide, maintain, promote, and improve the Services, (ii) to comply with applicable law and enforce Recraft policies, or (iii), if you share with other users through the Services any Assets produced by the Services at your direction or text prompts or images you input into the Services, or both, allow Recraft share those text prompts, images, and Assets with other users. For clarity, images you upload to the Service are not used to train Recraft’s image-generating model. You agree that this license is provided in return for your license to use the Services and not for any compensation paid to you by Recraft for your submission of text prompts or images or creation of Assets at your direction, as the use of the Services by you is hereby agreed as being sufficient compensation for the grant of rights herein. You also grant each other user of the Services a worldwide, non-exclusive, royalty-free license to access your publicly available Assets through the Services, and to use those Assets (including to reproduce, distribute, modify, display, and perform them) only as enabled by a feature of the Services. The licenses to Recraft and other users of the Services will survive termination or expiration of these Terms by any party, for any reason.
Rules and Conduct. As a condition of use, you agree not to use the Services for any purpose that is prohibited by these Terms. By way of example, and not as a limitation, you shall not (and shall not permit any third party to) take any action (including making use of the Site, any Assets, or Recraft models or derivatives of Recraft models) that: (i) would constitute a violation of any applicable law, rule, or regulation; (ii) infringes upon any intellectual property right or any right or privacy or right of publicity or other right of any other person or entity; (iii) is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, furthering of self-harm, or profane; (iv) creates Assets that exploit or abuse children or that depict images of a child or children being exploited or abused; (v) generates or disseminates verifiably false information with the purpose of harming others; (vi) impersonates or attempts to impersonate others; (vii) generates or disseminates personally identifying or identifiable information; (viii) creates Assets that imply or promote support of a terrorist organization; or (ix) creates Assets that condone or promote violence against people based on any protected legal category.
Restrictions. As a further condition of use, you shall not (directly or indirectly): (i) take any action that imposes or may impose an unreasonable or disproportionately large load on Recraft’s (or its third-party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass any measures Recraft (or its third-party providers’) may use to prevent or restrict access to the Services (or parts thereof); (iv) use any method to extract data from the Services, including web scraping, web harvesting, or web data extraction methods, other than as permitted through an allowable API authorized by Recraft; (v) reverse assemble, reverse compile, decompile, translate, or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems of the Services that are not open (except to the extent such restrictions are contrary to applicable law); (vi) use the Services or Assets to develop goods or services that compete with Recraft or the Services; (vii) use any automated or programmatic method to access the Services, generate Assets, or extract data from the Services, including scraping, web harvesting, or web data extraction; or (viii) reproduce, duplicate, copy, sell, resell, or exploit any portion of the Site or Services, use of the Site or Services, or access to the Site or Services, or any contact on the Site or Services, without Recraft’s express written permission. You agree not to use or launch any automated system, including without limitation, “robots”, “spiders”, “offline readers”, etc., or “load testers” such as Wget, Apache Bench, mswebstress, httpload, blitz, Xcode Automator, Android Monkey, etc., that accesses the Services in a manner that sends more request messages to the Service in a given period of time than a human can reasonably produce in the same period by using the Service, and you are forbidden from ripping the content without prior written consent of Recraft. Notwithstanding the foregoing, Recraft grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Recraft reserves the right to revoke these exceptions either generally or in specific cases. Recraft does not allow any efforts to reverse-engineer its system or protocols or explore outside the boundaries of the normal requests made by human users of the Services. Recraft does not allow request-modification tools such as Fiddler or Whisker or the like or any other such tools or activities that are meant to explore or harm, penetrate, or test the site. You must secure Recraft’s permission before you measure, test, health check, or otherwise monitor any network equipment, servers, or assets hosted on the Site.
We may host user-generated content from our users. If you access our Services, you may come across user-generated content that is illegal or that you find offensive or upsetting. We bear no responsibility for such user-generated content. If available, you may also click on the “Report” button to report this content to us.
Asset Uses. As between Recraft and you, you are solely and exclusively responsible for: (i) any content including, but limited to any images or text, or any prompts that you enter or upload to the Services; and (ii) any personal, private, or commercial use you make or permit to be made of the Assets. You are responsible for and assume all liability for any clearances, rights, permissions or licenses needed for any content or prompts you enter or upload to the Services and for any use you make of any Asset. Recraft has no obligation to monitor your use of the Services or Assets or to notify you of any license restrictions or other limits on use of Assets including Free Tier Assets. All use of Assets is at your own risk.
You acknowledge that, as between you and Recraft, all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content and any Recraft Assets or Free Tier Assets are owned by Recraft or Recraft’s licensors. Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in in these Terms. Recraft and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. All Recraft logos, marks, and designations are trademarks or registered trademarks of Recraft or its licensor(s). All other trademarks mentioned in any Recraft website, including the Site, are the property of their respective owners. The trademarks and logos displayed on any Recraft website, including the Site, may not be used without the prior written consent of their respective owners. Portions, features, functionality, or any combination of the foregoing of Recraft’s products or services, including the Services, may be protected under Recraft patent applications, patents or other intellectual property rights.
Recraft respects international intellectual property rights and asks its Members to do the same. Assets may be unintentionally similar to copyright-protected material held by others. The Digital Millennium Copyright Act of 1998 (“DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Service infringe your copyright, you (or your agent) may send to Recraft a written notice by mail or e-mail requesting that Recraft remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Recraft a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Recraft’s Copyright Agent as follows: By mail to Recraft Copyright Agent, 450 Townsend St, Ste 100 San Francisco, CA 94107; or by e-mail to [email protected]. We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
You hereby grant to Recraft a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback you provide relating to the Service (“Feedback”). Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Recraft any information or ideas that you consider to be confidential or proprietary.
Subject to this Section, these Terms will remain in full force and effect while you use the Services. Recraft may terminate your access to all or any part of the Services at any time if you fail to comply with these Terms, which may result in the forfeiture and destruction of all information associated with your account including any Assets. Further, either party may terminate the Services for any reason and at any time upon written notice and in the case of a Member, by ceasing any access to or use of the Service. If you wish to terminate your account, you may do so by following the instructions on the Services. You understand that any termination may involve deletion of your Assets from our databases. Recraft will not have any liability whatsoever to you for any termination of your rights under these Terms, including for deletion of your Assets. Any Fees paid hereunder are non-refundable. Upon any termination, all rights and licenses granted to you pursuant to these Terms shall terminate immediately, but all provisions hereof which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers, indemnity, and limitations of liability.
RECRAFT, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, ANY MATERIALS, SUBMISSIONS, USER CONTENT, ASSETS, FREE TIER ASSETS, OR THIRD PARTY CONTENT, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE AND/OR THE RESULTS OBTAINED FROM THE USE OF THIS SITE OR SERVICES, INCLUDING WITHOUT LIMITATION THE MATERIALS, SUBMISSIONS, ASSETS, FREE TIER ASSETS, AND THE THIRD PARTY CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICESS, MATERIALS, SUBMISSIONS, USER CONTENT, ASSETS, FREE TIER ASSETS, THIRD PARTY CONTENT, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. RECRAFT DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER. RECRAFT DOES NOT GUARANTEE ANY UPTIME OR AVAILABILITY OF THE SERVICES.
You agree to defend, indemnify, and hold harmless Recraft, its affiliates, and each of its and their respective officers, directors, employees, contractors, agents, suppliers, licensors and representatives from any and all liabilities, losses, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (i) your use or misuse of, or access to, the Services or any Assets including Free Tier Assets, or (ii) ) third-party claims that your Assets (including Free Tier Assets), prompts, you data sources or the use thereof, infringes, violates, or otherwise intrudes upon the intellectual property or other proprietary rights of a third party including rights of publicity, privacy and moral rights; or (iii) your violation of these Terms or any applicable law, contract, policy, regulation, or other obligation. Recraft reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Recraft. Recraft will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Disclaimer of Consequential Damages. RECRAFT SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING OR ANY USE OF ANY OF THE MATERIALS, CONTENT, ASSETS (INCLUDING FREE TIER ASSETS) OR THIRD PARTY CONTENT TO OR FROM THE SITE OR THE SERVICES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL RECRAFT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, OR DAMAGES OR COSTS DUE TO PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT RECRAFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OR THE SERVICE, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
Limitation of Direct Damages. OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED IN THE AGGREGATE TO THE GREATER OF FIFTY US DOLLARS (U.S. $50), OR THE AMOUNT PAID BY YOU TO RECRAFT IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH ASSERTED CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Allocation of Risk and Material Term. THIS SECTION ON LIMITATIONS OF LIABILITY AND DISCLAIMER OF DAMAGES WILL SURVIVE TERMINATION OF THE AGREEMENT. THESE PROVISIONS ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND ARE AN INTRINSIC PART OF THE BARGAIN BETWEEN THE PARTIES. THE FEES PROVIDED FOR IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISKS AND THE LIMITATIONS OF LIABILITY AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Governing Law, Dispute Resolution, Class Action Waiver, Arbitration Agreement
Recraft is available to address most concerns that you may have concerning Recraft’s Services. Contact Recraft here [email protected].
Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York as applied to agreements entered into and to be performed entirely within the State of New York between New York residents, without giving effect to any conflict of law principles that would require the application of the substantive or procedural laws of a different jurisdiction. The parties agree that United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.
Notice of Claim and Required Information Dispute Resolution Process. If you have any concern or dispute that Recraft is unable to resolve (“Claim”), you agree to first try to resolve the dispute informally and in good faith by contacting us and providing a written Notice of Claim to [INSERT EMAIL ADDRESS). The Notice of Claim must provide Recraft with fair notice of your identity, a description of the nature and basis of your Claim, and the relief you are seeking, including the specific amount of any monetary relief you are seeking, and cannot be combined with a Notice of Claim for other individuals. If any dispute related to your Claim is not resolved within thirty (30) days of receipt, any resulting legal actions must be resolved through either small claims court or final and binding arbitration, including any dispute about whether arbitration is required for the dispute, subject to the exceptions set forth below. Neither party shall initiate legal action until thirty (30) days after the Notice of Claim is received. This agreement to arbitrate shall apply, without limitation, to all claims that arose or were asserted before the effective date of the Terms. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of the Terms or formation of the Terms, including whether any dispute between us is subject to arbitration (i.e., the arbitrator will decide the arbitrability of any dispute) and whether all or any part of these Terms are void or voidable. Claims related to the Terms, Services, or Assets are permanently barred if not brought within one year of the event resulting in the Claim.
No Class Actions or Class Arbitration. You may only resolve disputes with us on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Nonetheless, if any portion of this class action waiver is deemed unenforceable or invalid as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
Any dispute under this Agreement will be submitted to binding arbitration. Such arbitration will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to its Streamlined Arbitration Rules and procedures (“Rules”). There will be one (1) arbitrator agreed upon by the parties, and if the parties cannot agree within ten (10) days, then JAMS will make the appointment. The arbitrator will be a trial attorney having not less than fifteen (15) years’ experience in intellectual property matters and sales and licensing of consumer technology products. The arbitration will be conducted in the English language. Any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). The place of arbitration will be San Francisco County, California. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. In addition to the authority conferred on the arbitrator by the Rules, the arbitrator will order the production of relevant documents requested by either party. At the request of any party, the arbitrator shall order the deposition of any witness who submits a witness statement. The arbitrator shall have the discretion to hear and determine at any stage of the arbitration any issue asserted by any party to be dispositive of any claim or counterclaim, in whole or part, in accordance with such procedure as the arbitrator may deem appropriate, and the arbitrator may render an award on such issue. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. In the event of a conflict between the rules of the arbitration provider and the Terms, including with respect to the assessment of the fees and costs of arbitration, the Terms will govern.
Arbitration Fees and Costs. Payment of all filing, administration, and arbitrator fees and costs of arbitration will be governed by the rules of the arbitration provider, except that to the extent that you bring a Claim as part of a Coordinated Action, we agree that the parties will equally share all of the fees and costs of arbitration (to the extent that allocation is not already required under applicable rules). For purposes of this section, a “Coordinated Action” is any action in which you are represented by a law firm or collection of law firms that has filed numerous coordinated individual arbitration demands of the same or similar nature against Recraft within a short time. Notwithstanding the above, if you are unable to afford fees or costs of arbitration, Recraft will pay them. If the arbitrator finds that either the substance of a Claim or the relief sought in arbitration was frivolous, or a Claim was brought for an improper purpose, the parties may seek to re-allocate the fees and costs of arbitration, according to the rules of the arbitration provider.
Exceptions to Arbitration – Small Claims and Injunctive Relief. Notwithstanding the foregoing, either party may elect to have any Claim that is subject to the jurisdiction of small claims court decided in small claims court in the City and County of San Francisco, California, USA. If either party files a Claim in arbitration that could have been brought in small claims court, the other party may provide notice that it wants the case decided in small claims court before the appointment of an arbitrator, and the arbitrator shall administratively close the case before assessing any fees, and the party bringing the Claim must proceed in small claims court in lieu of arbitration. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the Claim should proceed in arbitration. Additionally, either party shall be entitled to apply for preliminary injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, such as in the event of your or others’ unauthorized access to or use of the Services in violation of the Terms. If a party has a dispute in which they seek to obtain both preliminary injunctive relief and other forms of relief, the party may go to court to seek preliminary injunctive relief but must arbitrate its claims or seek relief in small claims court for all other forms of relief.
Acceptance of Arbitration and Right to Opt Out. Within the first thirty (30) days of your use of the Services the provisions on Dispute Resolution, Class Action Waiver, Arbitration Agreement of the Terms, whichever is later, you have the right to opt out of the arbitration and class action waiver provisions of the Terms by sending us written notice of your decision to [email protected] or 450 Townsend St, Ste 100 San Francisco, CA 94107. If you opt out of these provisions, Recraft will also not be bound by them.
Electronic Communications. The information communicated on the Site constitutes an electronic communication. When you communicate with Recraft through the Site or other forms of electronic media, such as e-mail, you are communicating with Recraft electronically. You agree that Recraft, on behalf of itself and others who may be involved with delivering the Services (as applicable), may communicate electronically by e-mail and/or may make communications available to you by posting them on the Site, and that such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by Recraft. Notices and communications to Recraft must be sent to the applicable address given in these Terms or to [email protected].
Force Majeure. Neither party will be liable to the other for any breach of this Agreement which arises because of any circumstances which the defaulting party cannot reasonably be expected to control (which shall include but not be limited to, any act of god, fire, casualty, flood, pandemic or epidemic, war, labor disputes, governmental action, failure of public services, interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing but, for the avoidance of doubt, shall not include shortage or lack of available funds, provided it promptly notifies the other party of such circumstances. If performance has been interfered with, hindered, delayed or prevented for a period in excess of thirty (30) days, the party whose performance is not affected may terminate this Agreement immediately by written notice to the other party.
Entire Agreement. These Terms of Service, including the Privacy Policy and all other terms and conditions incorporate herein, constitute the entire agreement between you and Recraft regarding the use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law and consistent with the original intent. These Terms create no relationship of employee-employer, agency, partnership, or joint venture between the parties. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Recraft’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Recraft may assign, transfer, or delegate any of its rights and obligations hereunder without your consent. The terms and conditions set forth in these Terms shall be binding upon assignees.
Notices. Except as otherwise provided herein, all notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or two days after it is sent, if sent for next day delivery by recognized overnight delivery service.
Consumer Complaints. In accordance with California Civil Code §1789.3, California residents may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
For questions regarding the Services, you can get in touch by emailing Recraft at [email protected].