Terms of Service

Version Effective Date: January 1, 2023

Welcome to BlueWillow! Thank you for using our image generation and services (referred to herein collectively as the “Services”). Our Services enable you to generate images and other assets (“Assets”). Our Services may be made available to you on our website, mobile app, desktop app, or downloadable software. Your use of the Services, regardless of how you use and access them, is subject to this Terms of Service (this “Agreement”). Please read it carefully. Our Privacy Policy outlines how we handle your data.

This Agreement, which governs Customer's access to and use of the Services, is made between LMWR Technology OÜ, a private limited company with the Business Registry Code 16454789 (“we,” “us,” or “BlueWillow”), and the entity or individual accessing and using our Services (“you,” “your,” or the “Customer”).This Agreement becomes effective when the Customer first accesses or uses the Services. Please discontinue using any Services if you do not agree with this Agreement. This Agreement may be revised at any time, in our sole and absolute discretion, and such revisions will be effective once published to our Website. You should frequently check this page for changes before using the Services to ensure you are apprised of the then-current version of this Agreement. We will take commercially reasonable efforts to provide you with notice when this Agreement is revised. Your continued use of the Services after any update or revision to this Agreement shall constitute acceptance of such revisions.Other documents referenced in this Agreement may also govern the Customer's use of the Services.

1. Service Availability and Quality

We strive to constantly improve the Services. This includes, but is not limited to, improving the art style of Assets, the algorithms used to generate Assets, and the functionality of the Services available to the Customer. We provide no guarantees about stability of the Services nor their quality, availability, or dependability. We are not responsible for any damages caused by your use of the Services.The Customer is provided with the Services “AS IS”. This means we are not responsible for how you use them or what you do with the images you generate. Due to the nature of machine learning, we do not guarantee that the same prompts used multiple times will result in the same images, nor do we guarantee that use of unique prompts will not result in the same image.

You are solely responsible for all liability, losses, claims, damages, and expenses resulting from Assets you create. BlueWillow may suspend or cancel your access to the Services for any reason and at any time, with or without notice to you.

You may have to create a user account (an “Account”) in order to access or use our Services. An Account may only be used by a single user. Using multiple IP addresses to use or access the Services is in violation of this Agreement and may lead to suspension.

Restrictions

You may not: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code in any of the software, firmware, or hardware embodied in the Services; (b) use the Services in any way that infringes upon the intellectual property rights of others; (c) use the Services to develop or create competing services or products; and/or (d) use any method to extract data from the Services.

We will investigate complaints related to this Agreement. We will take action, as we deem appropriate in our sole and absolute discretion, if you violate the terms and conditions of this Agreement. We will comply with the requests of law enforcement officials, regulators, or other third parties if deemed appropriate.

2. Age Requirements

You must be at least thirteen (13) years old to use our Services. If you are under 13, you may only use the Services when accompanied by and in the presence of a parent or legal guardian. This Agreement applies to all users accessing or required to supervise your access to our Services through your Account, including parents and/or guardians of the Customer. We aim to keep our services PG-13, however, this is not guaranteed. We are not responsible for inappropriate content generated by users and/or customers of BlueWillow, including you. Our technology is new and does not always work as expected, but we will do our best to exclude inappropriate, sexual, racist, or other NSFW and offensive images.

3. Your Account

You may be required to provide BlueWillow with personal information in order to create an Account and/or to use the Services, including your name, email address, text/image prompts, and billing information which may require your physical address. Additional information about how we collect and use your information can be found in our Privacy Policy.

BlueWillow may offer free and paid versions of its Services.

(a) Free Version. If you use the free version of our Services, the following provisions apply:

As between you and BlueWillow, you own the Assets you create. The Assets you create on BlueWillow may be used by you for any purpose that is not illegal and/or that violates this Agreement, otherwise BlueWillow may take action against you, including without limitation, disabling your access to the Services. Your Assets will be published on a public server/channel accessible by other customers of Blue Willow. You may use the Assets created by other users and/or customers of BlueWillow but only assets generated on public channels.  

By using the free version of our Services, you grant BlueWillow and its successors and assigns a perpetual, worldwide, non-exclusive, sublicensable, no-charge, royalty-free, irrevocable license to reproduce, make derivative works of, publicly display, publicly perform, sublicense, and distribute, for any purpose, (i) the text and image prompts you put into the Services; and (ii) Assets produced by the Services. This license survives the expiration or termination of this Agreement for any reason.

(b) Paid Versions.  If you use a paid version of our Services, the following provisions apply:

If you purchase a paid version of our Services, we will grant you access to private channels/servers and/or a “Private Mode” so that Assets you generate are not publicly shared or accessible (unless you share them). Please note that Assets shared in any open space, such as our public Discord chatrooms, will be viewable and accessible by anyone. Any Assets shared in any open space will not be protected by BlueWillow.  We will take commercially reasonable actions to ensure that Assets created on a private channel/server, or that are created with a “Private Mode” engaged, are not publicly published by BlueWillow.

As between you and BlueWillow, you own the Assets you create, and BlueWillow will have no rights or licenses to use Assets created using our paid Services. The Assets you create on BlueWillow may be used by you for any purpose that is not illegal and/or that violates this Agreement, otherwise BlueWillow may take action against you, including without limitation, disabling your access to the Services.Paid versions will also grant you access to additional Services not available to users of the free version. For example, paid versions will give you access to additional features, additional usage limits, and/or higher resolution images. Please visit our website for more details.

4. DMCA and Takedowns Policy

We may, in our sole discretion, remove any Assets that appear to infringe on the intellectual property rights of others or that are in violation of this Agreement. It is our policy to respond to and investigate claims of copyright and other intellectual property infringement. We have the right to terminate your use of and access to the Services for any intellectual property infringement.

You may notify us of alleged copyright infringement in accordance with the Digital Millennium Copyright Act (the “DMCA”).  We will respond to notices of alleged infringement sent pursuant to the DMCA.

(a)   Providing a DMCA notice

In order to notify us of a copyright infringement claim pursuant to the DMCA, you must provide:

           (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

           (ii) identification of the copyrighted work or works claimed to have been infringed;

           (iii) a description of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material, including a URL address;

           (iv) your address, telephone number and email address;

           (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

           (vi) a statement made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.

The notice described above should be sent our designated copyright agent at legal@bluewillow.ai. If you fail to comply with all of the requirements described above, your DMCA notice may not be processed.

(b)  Providing a DMCA counternotice

If you believe that any Asset or material that was removed (or to which access was disabled) is not infringing, or that you have the right to post and use such Asset or material from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, you must send a counternotice containing the following information to legal@bluewillow.ai:

           (i) your physical or electronic signature, or the physical or electronic signature of the person authorized to act on behalf of the owner of the exclusive right that is alleged to have been infringed;

           (ii) identification of the copyrighted work that has been removed, blocked, or to which access has been disabled;

           (iii) the location at which the allegedly infringing material appeared before it was removed or disabled, including a URL address;

           (iv) your address, telephone number and email address;

           (v) a statement by you that you have a good faith belief that the material removed or disabled was the result of a mistake or misidentification of the material; and

           (vi) a statement made under penalty of perjury by you that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the copyright involved.

If we receive a counternotice, we may send a notice to the complaining party that the removed material will be restored, or we will cease disabling it, in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Customer who provided the material, the removed material may be replaced or access to it restored within ten (10) to fourteen (14) business days or more after receipt of the counter notice, in our discretion.

5. Dispute Resolution and Governing Law

This Agreement shall be governed by, construed, interpreted and enforced in accordance with the internal laws of the State of Delaware, without regard to the conflict of law provisions of the State of Delaware or of any other state. This also means that any and all legal claims and/or disputes arising from or under this Agreement will be governed by the laws of the state of Delaware. The parties will attempt to resolve any dispute in good faith within 30 days. You agree that if the dispute is not resolved within such 30-day period, it will be decided by neutral, binding arbitration. The arbitration shall be conducted by the American Arbitration Association's International Centre for Dispute Resolution in accordance with the Expedited Commercial Rules in force on the date of this Agreement (“Rules”). The parties will mutually choose one arbitrator. The arbitration will take place in the State of Delaware, USA.Any party to this Agreement may petition to any competent court for injunctive relief necessary to protect its rights pending the conclusion of the arbitration. The arbitrator has the authority to issue equitable or injunctive relief in accordance with this Agreement.The arbitration ruling is final and binding on the parties to this Agreement, and its implementation may be sought in any competent court, including any court with jurisdiction over either party to this Agreement or its property.Regardless of the arbitrator's final decision resolving the dispute, each party is responsible for its own attorneys' and expert fees and costs and expenses except as otherwise provided in Section 9(d) of this Agreement.

6. Payment and Billing

BlueWillow may bill for its Services through a third-party payment service. The terms of services of the payment provider govern the relationship of that transaction.You will be able to cancel your Account at any time. Refunds will be granted only for Services that have not yet been rendered.

7. Community Guidelines

Respect other users and/or customers of BlueWillow. Do not use text inputs and/or enter prompts that are inherently offensive, aggressive, or otherwise abusive. Violence or harassment of any kind will not be allowed by us.Do not create any Assets that comprise of adult content or gore. Please avoid creating Assets that are distressing or aesthetically disturbing. Some text inputs and prompts will be automatically restricted by us.

Do not create any content or Assets that infringes upon the intellectual property rights, or other proprietary rights, of any third-party.

Do not use any Assets in any manner that would infringe upon the intellectual property rights, or other proprietary rights, of any third-party.

Do not use or share the Assets of other users and/or customers of BlueWillow without their permission.When sharing any Assets, use caution. It's fine to share your creations outside of the BlueWillow community, but keep in mind how others might perceive them.You may be prohibited from using or accessing our Services if you cause a negative contribution to the community, as determined in our sole and absolute discretion.

Any violation of these community guidelines may result in a permanent ban from using or accessing our Services.

8. Intellectual Property

All aspects of the Services, including without limitation, all trademarks, service marks, trade names, trade dress, copyright, patents, trade secrets, source code, object code, and software, except for your Assets, are the sole and exclusive property of BlueWillow and/or its licensors. Except as expressly provided herein, BlueWillow does not grant you any express or implied rights in and to the Services or any intellectual property embodied therein, and all such rights are expressly reserved and retained by BlueWillow.

9. Disclaimer; Waiver; Limitation of Liability; Indemnification
(a)   Disclaimer

YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES AND/OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SERVICES ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BLUEWILLOW DOES NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. BLUEWILLOW DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, ERROR-FREE OR RELIABLE.

(b)  Waiver

By using the Services, you hereby release and forever discharge BlueWillow and its agents, employees, directors, officers, successors, and assigns from any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever, which you now have or may hereafter have (“Claims”), arising out of or in any way relating to your use of the Services, including but not limited to Claims relating to your use of the assets of another users and/or customer of BlueWillow, and/or the use of your Assets by another users and/or customer of BlueWillow.

(c)   Limitation of Liability

IN NO EVENT SHALL BLUEWILLOW OR ANY OF ITS EQUITY HOLDERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, LICENSORS, SUPPLIERS, AFFILIATES, AND/OR AGENTS  BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT BLUEWILLOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR FOR DIRECT DAMAGES IN EXCESS OF (A) FEES ACTUALLY PAID BY YOU TO BLUEWILLOW IN THE THREE (3) MONTHS PRIOR TO THE EVENTGIVING RISE TO A CLAIM HEREUNDER OR (B) $100, WHICHEVER IS GREATER.

(d)  Indemnification

(i)             You agree to indemnify, defend and hold harmless BlueWillow and its equity holders, officers, directors, managers, licensors, licensees, sublicensees, affiliates, customers and/or users (other than you), employees, and agents and each of their respective successors and assigns (the “Indemnified Parties”) from and against any and all liabilities, obligations, debt, claims, causes of action, amounts paid in settlement, damages, penalties, fines, costs, expenses (including attorneys’ fees and costs) and other losses (collectively, “Losses”), whether in connection with Third-Party Claims or claim between the parties to this Agreement, arising out of or in any way related to your use the Services, including without limitation: (A) your breach or alleged breach of any provision contained in this Agreement, including, without limitation, a breach of our Community Guidelines set forth in Section 7 of this Agreement; (B) your unauthorized use of/access to the Services; (C) your use or sharing of the Assets, text or other prompts of another user and/or customer of BlueWillow; and (D) your content, including without limitation, any and all Assets created by you.

(ii)           If a third party initiates a claim, demand, dispute, lawsuit or arbitration (a “Third-Party Claim”) against an Indemnified Party with respect to any matter that the Indemnified Party might make a claim for indemnification against you (the “Indemnifying Party”) under this Section 9(d), then the Indemnified Party will promptly notify the Indemnifying Party in writing of the existence of such Third-Party Claim and will deliver copies of any documents served on the Indemnified Party with respect to the Third-Party Claim; provided, however, that any failure on the part of an Indemnified Party to so notify an Indemnifying Party shall not limit any of the obligations of the Indemnifying Party under this Section 9(d). Upon receipt of such notice, the Indemnifying Party will have the right to defend the Indemnified Party against the Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party; provided, that (i) the Indemnifying Party notifies the Indemnified Party in writing within fifteen (15) days after the Indemnified Party has given notice of the Third-Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Losses the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third-Party Claim, (ii) the Third-Party Claim involves only money damages and does not seek an injunction or other equitable relief or are asserted by any governmental agency, (iii) settlement of, or an adverse judgment with respect to, the Third-Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice materially adverse to the continuing business interests or the reputation of the Indemnified Party, (iv) the Indemnifying Party conducts the defense of the Third-Party Claim actively and diligently, (v) such Third-Party Claim does not involve any criminal liability or any admission of criminal wrongdoing, or any civil claim commenced by a governmental agency, (vi) in the reasonable opinion of counsel to the Indemnified Party, such Third-Party Claim will not result in a conflict of interests between the Indemnified Party and the Indemnifying Party, (vii) such Third-Party Claim is not related to a material supplier or licensor of BlueWillow and (viii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third-Party Claim and satisfy in full its indemnification obligations hereunder with respect to such Third-Party Claim. BlueWillow reserves the right, at its own expense, to employ separate counsel and assume the exclusive defense and control of any Third-Party Claim otherwise subject to indemnification by you. The Indemnifying Party will consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party.

10. Miscellaneous

(a) Force Majeure. Neither party to this Agreement shall be liable for failure or delay in performance caused by acts of God, natural disasters, terrorism, riots, or war.

(b) Agency. Nothing in this Agreement establishes any partnership, joint venture, employment or other agency between you and BlueWillow.

(c) Severability. In the event that any provision of this Agreement is invalid, unlawful, or unenforceable, the remaining provisions will remain in effect.

(d) Survival. The provisions and duties of this Agreement that a reasonable person would expect to survive its termination, including, without limitation, your obligations under Section 9, shall survive a termination of this Agreement.

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