Terms of Service

Effective as of 30 August 2024

Thank you for using the 404-GEN platform. These Terms of Service (“Terms”) govern the relationship between 404-GEN AG. (“Company,” “we,” “us,” or “our”) and our affiliates and the entity or person (“Customer, “You”, “Your”) using or accessing our services, applications, or platform through our website available at 404.xyz (the “Site”), through any of our Discord servers, or by any other means (together, the “Services”). These Terms explain what rights you have with respect to images, 3D models and other assets which you might generate with the Service (the "Assets"), or prompts you might enter into the Service (the “Inputs”), your use of the Services, and other important topics like arbitration. Our privacy policy outlines how we handle your data here. Please carefully read these Terms, along with our privacy policy, and all other documents referenced in these Terms, including the Subscription Plans page and the Community Guidelines below. Together with the Terms, these documents form a single binding agreement between us (the “Agreement”).

This Agreement is effective when the Customer is presented with this Agreement and proceeds to use or access the Services (the "Effective Date") or to receive or distribute Assets. This agreement may be updated and presented again to the Customer from time to time. Continued use of the Services constitutes acceptance of the updated terms. If You do not agree to this Agreement, please stop using or accessing the Services.

(Service availability and quality)

We are constantly improving the Services to make them better. The Services are subject to modification and change, including but not limited to the art style of Assets, the algorithms used to generate the Assets, and features available to the Customer. No guarantees are made with respect to the Services’ quality, stability, uptime or reliability. Please do not create any dependencies on any attributes of the Services or the Assets. We will not be liable to You or Your downstream customers for any harm caused by Your dependency on the Service.

Both the Services and the Assets are provided to Customer on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Assets and assume any risks associated with use of the Services.

404-GEN reserves the right to suspend or ban Your access to the Services at any time, and for any reason. You may not access or use the Services for purposes of developing or offering competitive products or services. You may not reverse engineer the Services or the Assets. You may not use automated tools to access, interact with, or generate Assets through the Services. You may not resell or redistribute the Services or access to the Service. Only one user may use the Services per registered account. Each user of the Services may only have one account.

You may not use the Service to try to violate the intellectual property rights of others, including copyright, patent, or trademark rights. Doing so may subject you to penalties including legal action or a permanent ban from the Service.

We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.

(Age requirements)

By accessing the Services, You confirm that You are at least 13 years old and meet the minimum age of digital consent in Your country. If You are old enough to access the Services in Your country, but not old enough to have authority to consent to our terms, Your parent or guardian must agree to our terms on Your behalf.

Please ask Your parent or guardian to read these terms with You. If You are a parent or legal guardian, and You allow Your teenager to use the Services, then these terms also apply to You and You are responsible for Your teenager’s activity on the Services.

404-GEN tries to make its Services PG-13 and family friendly, but the Assets are generated by an artificial intelligence system based on user queries. This is new technology and it does not always work as expected. No guarantees are made as to the suitability of the Assets for the Customer.

(Your information)

By using the Services, You may provide 404-GEN with personal information like Your email address, user name, billing information, favorites, image outputs, and text prompts that You enter, or sample images that You upload to the Service. Our privacy policy can be found here.

(Content rights)

(Your rights and obligations)

You own all Assets You create with the Services to the fullest extent possible under applicable law. There are some exceptions:

• Your ownership is subject to any obligations imposed by this Agreement and the rights of any third-parties.

• If you upscale the Assets of others, these assets remain owned by the original creators.

Please consult Your own lawyer if You want more information about the state of current intellectual property law in Your jurisdiction. Your ownership of the Assets you created persists even if in subsequent months You downgrade or cancel Your membership.

Inputs, Assets, and other content such as messages, photos, videos, and documents that you may provide to the Services (such as through uploading, posting, sharing, or chat messages) are collectively, “Content”. You are responsible for all Content that you provide or generate, including ensuring that it does not violate any applicable laws or this Agreement, and that you have all necessary rights and permissions to provide the Content.

(Rights you give to 404-GEN)

By using the Services, You grant to 404-GEN, its affiliates, successors, and assigns a perpetual, worldwide, non-exclusive, sublicensable no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the Content You input into the Services, as well as any Assets produced by You through the Service. This license survives termination of this Agreement by any party, for any reason.

(DMCA and takedowns policy)

Notification Procedures

We respect the intellectual property rights of others. If you believe that material located on or linked to by the Services violates your copyright or trademark, please send a notice of claimed infringement to [e-mail] with the subject “Takedown Request,” and include the following:

1. Your physical or electronic signature.

2. Identification of the copyrighted work (or mark) you believe to have been infringed or, if the claim involves multiple works, a representative list of such works.

3. Identification of the material you believe to be infringing in a sufficiently precise and detailed manner to allow us to locate that material.

4. Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).

5. A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.

6. A statement that the information in the written notice is accurate.

7. A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

8. If the copyright owner’s rights arise under the laws of a country other than the United States, please identify the country.

Upon receipt of a notice that complies with the foregoing, we reserve the right to remove or disable access to the accused material or disable any links to the material; notify the party accused of infringement that we have removed or disabled access to the identified material; and terminate access to and use of the Services for any user who engages in repeated acts of infringement.

Please be aware that if you knowingly misrepresent that material or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

Counter-Notification Procedures

If you believe that material was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us by submitting a written notification to our copyright agent designated above. Such notification must include substantially the following:

1. Your physical or electronic signature.

2. An 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 disabled.

3. Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).

4. A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.

5. A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Services may be found) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.

6. Our designated agent to receive counter notices is the same as the agent shown above.

7. The DMCA allows us to restore the removed content within 10-14 business days unless the complaining party initiates a court action against you during that time period and notifies us of the same.

8. Please be aware that if you knowingly materially misrepresent that material or activity on the Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorney’s; fees) under Section 512(f) of the DMCA.

(Dispute resolution and governing law)

In the event a dispute, controversy, or claim arises out of or relating to these Terms (“Dispute”), the Dispute will be resolved by binding arbitration rather than in court. The parties will first try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it shall be resolved by binding arbitration by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of this Agreement ("Rules"). The parties will mutually select one arbitrator. The arbitration will be conducted in English in Zug, Switzerland. By agreeing to mandatory arbitration as set forth herein, You and 404-GEN knowingly and irrevocably waive any right to trial by jury in any action, proceeding, or counterclaim, except that either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in the Agreement. The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.

Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.

(Rate limiting)

We reserve the right to rate limit You to prevent quality decay or interruptions to other customers.

(Community guidelines)

1. Be kind and respect each other and staff. Do not create Assets, use text prompts, or submit content that are inherently disrespectful, aggressive, hateful, or otherwise abusive. Violence or harassment of any kind will not be tolerated.

2. No adult content or gore. Please avoid making visually shocking or disturbing content. We will block some text inputs automatically.

3. Respect others’ creations. Do not distribute or publicly repost the creations of others without their permission.

4. You may not use the Services to generate images for political campaigns, or to try to influence the outcome of an election.

5. You may not use the Services or the Assets to attempt to or to actually deceive or defraud anyone.

6. You may not use the Services for illegal activity nor may you upload images to our servers that involve illegal activity, or where the uploading itself may be illegal.

7. You may not intentionally mislead recipients of the Assets about their nature or source.

8. Respect others’ rights. Do not upload others’ private information.

9. Be careful about sharing. It’s OK to share Your creations outside of the 404-GEN community but please consider how others might view Your content.

10. Banhammer. Any violations of these rules may lead to bans from our services. We are not a democracy. Behave respectfully or lose Your rights to use the Service.

(Limitation of liability and indemnity)

We provide the service as is, and we make no promises or guarantees about it.

You understand and agree that we will not be liable to You or any third party for any loss of profits, use, goodwill, or data, or for any incidental, indirect, special, consequential or exemplary damages, however they arise. Our aggregate liability under this Agreement will not exceed the amount You paid for the Services that gave rise to the claim during the 12 months before the claim.

You are responsible for Your use of the service. If You harm someone else or get into a dispute with someone else, we will not be involved.

To the extent permitted by law, you will indemnify and hold us harmless, our affiliates, and our personnel, from and against any costs, losses, liabilities, and expenses (including attorneys’ fees) from third party claims arising out of or relating to your use of the Services and Assets or any violation of these Terms.

(Miscellaneous)

1. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

2. No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.

3. Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

4. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

5. Survival. The sections and obligations in this Agreement that a reasonable person would expect to survive this agreement, will. Particularly the IP and privacy stuff.

6. Governing Law. This Agreement shall be governed by the laws of the Zug, Switzerland, without reference to conflict of law rules. All disputes will be governed by the arbitration agreement above.

(How to contact us)

• Email: [e-mail]