Terms of Service

These Nightshade Labs Terms of Service ("Terms") are between you ("you" or "your") and Nightshade Labs ("Nightshade Labs", "we", "us", or "our"). By accessing or using our Services (defined below) in any way, by completing the account registration process, or by browsing the Website, you agree to be bound by these Terms. These Terms apply to your access to and use of the Nightshade Labs:

1. website and all associated web pages (the "Website"); and
2. services (including applications) and products accessible via the Website or our application programming interfaces (APIs), or otherwise made available to you by us (together with the Website, the "Services").

IF YOU SUBSCRIBE TO ANY FEATURE OR FUNCTIONALITY OF THE SERVICES FOR A TERM (THE "INITIAL TERM"), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT NIGHTSHADE LABS' THEN-CURRENT FEE FOR SUCH FEATURES AND FUNCTIONALITY UNLESS YOU DECIDE NOT TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 6(A) BELOW.

THESE TERMS CONTAIN VARIOUS LIMITATIONS AND EXCLUSIONS OF LIABILITY IN SECTION 11.

SECTION 12 CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND NIGHTSHADE LABS. ADDITIONALLY, SECTION 12 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND NIGHTSHADE LABS SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 12 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.

1. Eligibility and Use Restrictions

(a) Age. If you are under 18 years of age (or the age of legal majority where you live), you may not use our Services.

(b) Authorization. If you register, access or use our Services on behalf of another person or entity, (i) all references to "you" throughout these Terms (other than in this Section 1(a)) will include that person or entity, (ii) you represent that you are authorized to enter into these Terms on that person's or entity's behalf, and (iii) in the event you or that person or entity violates these Terms, that person or entity also agrees to be responsible to us.

(c) Use Restrictions. Your access to and use of the Services and your use of any Output (defined below) must comply with these Terms. Without limiting the foregoing: (i) if you access or use our Services free of charge (a "Free User"), you may only use the Services for non-commercial purposes; (ii) if you access or use our Services through a paid subscription plan (a "Paid User"), you may use the Services for commercial purposes, but in either case, your access and use of the Services and any Output must still comply with the Prohibited Use Policy.

2. Personal Data

You may provide certain information to Nightshade Labs in connection with your access to or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive communications from Nightshade Labs via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to Nightshade Labs in connection with the Services is accurate. For information about how we collect, use, share, and otherwise process information about you, please review our Privacy Policy.

You acknowledge that Nightshade Labs may process personal data relating to the operation, support, or use of our Services for our own business purposes, such as billing, account management, data analysis, technical support, product development, research and development of its AI models, improvement of its systems and technologies, and compliance with law.

3. Accounts

We may require that you create an account in order to use some or all of our Services. You may not share or permit others to use your individual account credentials. You will promptly update any information contained in your account if it changes. You must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If your account is closed or terminated, you will forfeit all unused credits related to our Services associated with your account.

4. Content; Inputs and Outputs

(a) Inputs and Outputs. You may transmit or otherwise provide data and information as input to our Services ("Input"). When you provide Input to the Services, you may receive image, video, or other media output generated and returned by our AI models based on your Input ("Output") (Input and Output, collectively, the "Content"). Input may include, without limitation, text descriptions, images, video, audio, or any other content that you may provide to us through the Services. Your access to and use of the Services, including for the purposes of providing Input to the Services and receiving and using the Output from the Services, is subject to our Prohibited Use Policy.

(b) Rights to your Content.

• Except as expressly set forth herein, as between you and Nightshade Labs, you retain all rights in and to your Input.
• Output may be generated by, but does not include, Nightshade Labs' foundational and other artificial intelligence models (the "Models"). Except as expressly set forth herein, as between you and Nightshade Labs, you retain all rights in and to your Output.

(c) License to Your Content. You hereby grant to Nightshade Labs a license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and use your Input to provide the Services (including the trust and safety features therein), to improve the Services, and to develop new services and products. Such license shall be:

• perpetual and irrevocable (which means this license cannot be withdrawn),
• nonexclusive (which means you can license your Input to others),
• royalty-free and fully paid (which means there are no monetary fees for this license),
• worldwide (which means it's valid anywhere in the world), and
• sub-licensable, through multiple tiers (which means we can make it available to others).

(d) Necessary Rights. You may not provide Input or create Output for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that the Content, and our use of the Content, will not violate any rights of any person or entity, or cause injury to any person or entity.

(e) Data Deletion and Opt Out. You may request for us to delete your personal data as required under applicable law. Please see our Privacy Policy for more information. In addition, you may opt out of our use of your Content for training at any time by contacting us.

(f) Moderation. We do not undertake to review all Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any Content. Although we have no obligation to screen, edit, or monitor Content, we may:

• delete or remove Content or refuse to post any Content at any time and for any reason with or without notice;
• terminate or suspend your access to all or part of the Services if the Content is reasonably likely to violate applicable law or these Terms;
• take any action with respect to the Content that is necessary or appropriate to ensure compliance with applicable law and these Terms; and
• as permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose any information.

5. Our Intellectual Property

(a) Ownership. The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by Nightshade Labs or our licensors. Except as explicitly stated in these Terms, all rights in and to the Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors.

(b) Limited License. Subject to your compliance with these Terms, Nightshade Labs hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use our Services. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

(c) Trademarks. The name "Nightshade Labs" and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of Nightshade Labs and may not be copied, imitated or used, in whole or in part, without our prior written permission.

(d) Feedback. You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Nightshade Labs or our Services (collectively, "Feedback"). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgement or compensation to you.

6. Subscription Services; Payment

(a) Subscriptions. To access and use certain Services, you may be required to enroll in a subscription payment plan (a "Recurring Subscription"). Your Recurring Subscription will automatically renew until you cancel it or your Recurring Subscription is otherwise terminated. You authorize us to store your payment method information and to automatically charge your payment method(s) for the amount of your Recurring Subscription. You may cancel your subscription through your account. You may cancel a Recurring Subscription at any time, but if you cancel your Recurring Subscription before the end of the current subscription period, we will not refund any subscription fees already paid to us. Following any cancellation, you will continue to have access to the applicable Services through the end of your current subscription period.

Nightshade Labs may change the prices charged for Recurring Subscriptions at any time by posting updated pricing through the Services; provided, however, that the prices for your Recurring Subscription will remain in force for the duration of the subscription period for which you have paid.

(b) Payment. You represent and warrant that you have the right to use any payment method that you submit in connection with a payment. You agree to pay all charges incurred by you or on your behalf through the Services, at the prices in effect at the time such charges are incurred, including applicable taxes.

(c) Refunds. All sales are final. We may offer refunds at our sole discretion.

7. Copyright Complaints

In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who infringe the intellectual property rights of others. If you believe that any content on our Services infringes any copyright that you own or control, you may notify us by email at legal@nightshadelabs.ai.

8. Third-Party Services and Content

Our Services rely on or interoperate with third-party products and services, including data storage services, AI model providers, communications technologies, and internet operators (collectively, "Third-Party Services"). These Third-Party Services are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services.

We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, "Third-Party Content"). Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.

9. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend (at our option), and hold harmless Nightshade Labs and our officers, directors, partners, licensors, employees and agents from and against any losses, liabilities, claims, demands, damages, expenses or costs ("Claims") arising out of or related to: (a) your access to or use of the Services; (b) the Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services or the Content.

10. Disclaimers

Your use of our Services and any content or materials provided therein or therewith (including Third-Party Content and Third-Party Services) is at your sole risk. To the fullest extent permitted under applicable law, our Services and any content or materials provided therein or therewith are provided "as is" and "as available" without warranties of any kind, either express or implied. Nightshade Labs disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

Due to the nature of machine learning, the Output generated by you using the Services may not be unique across users. Two different parties may receive the same or similar Output after submitting their respective Inputs. Responses requested by and generated for other users are not considered Output for you, and you shall have no right or title over them.

11. Limitation of Liability

(a) To the fullest extent permitted by applicable law, Nightshade Labs will not be liable to you under any theory of liability (whether based in contract, tort, negligence, warranty, or otherwise) for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Nightshade Labs has been advised of the possibility of such damages.

(b) The total liability of Nightshade Labs for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of: (i) One Hundred United States Dollars ($100 USD); and (ii) the amount paid by you to use our Services in the 12 months preceding the claim.

12. Dispute Resolution; Binding Arbitration

Please read this Section 12 carefully because it requires you and Nightshade Labs to arbitrate certain disputes and claims and limits the manner in which we can seek relief from each other. Arbitration precludes you and Nightshade Labs from suing in court or having a jury trial. You and Nightshade Labs agree that arbitration will be solely on an individual basis and not as a class arbitration, class action, or any other kind of representative proceeding. Nightshade Labs and you are each waiving the right to trial by a jury.

(a) Informal Dispute Resolution. For any dispute or claim between you and Nightshade Labs arising out of or relating in any way to your access to or use of the Services (collectively, "Disputes"), you and Nightshade Labs agree to attempt to first resolve the Dispute informally. If you assert a Dispute against Nightshade Labs, you will first contact Nightshade Labs by sending a written notice of your Dispute to us by email at legal@nightshadelabs.ai.

(b) Binding Arbitration. Except for individual disputes that qualify for small claims court and any disputes exclusively related to intellectual property rights, all Disputes that are not resolved in accordance with Section 12(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury.

(c) Opting Out. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at legal@nightshadelabs.ai.

(d) WAIVER OF JURY TRIAL. YOU AND NIGHTSHADE LABS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Nightshade Labs are instead electing that all Disputes shall be resolved by arbitration under these Terms, except as specified in Section 12(b).

(e) WAIVER OF CLASS AND OTHER NON-INDIVIDUALIZED RELIEF. YOU AND NIGHTSHADE LABS AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.

13. Governing Law

Any Claims will be governed by and construed and enforced in accordance with the laws of the State of New York, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction.

14. Modifying and Terminating Our Services

We may: (a) modify, impose limits on, replace, upgrade, update, suspend, or terminate providing all or part of our Services at any time; (b) charge, modify, or waive any fees required to use the Services; or (c) offer opportunities to some or all end users of the Services, each of (a) through (c) without any liability or additional notice to you. We are not responsible for any loss or harm related to your inability to access or use our Services.

15. Export Control

You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent and warrant that you are not located in a country or territory that is subject to economic sanctions or trade embargoes imposed by the U.S. Government, and that you will comply fully with all relevant export laws and regulations.

16. Miscellaneous

(a) Nightshade Labs' failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties.

(b) The section titles in these Terms are for convenience only and have no legal or contractual effect.

(c) If any portion of these Terms is found to be unenforceable or unlawful for any reason, the unenforceable or unlawful provision will be severed from these Terms and will have no impact on the remainder of these Terms.

(d) If you have a question or complaint regarding the Services, please send an email to support@nightshadelabs.ai.