General Terms and Conditions of Business and Use of creamlabs AI GmbH

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✅ Commercial use only for Pro, Unlimited & Enterprise accounts

✅ Do not create or publish content that infringes on the rights of others

✅ Adhere to your national content creation regulations

✅ Have fun with creamAI

Long version

General Terms and Conditions of Business and Use of creamlabs AI GmbH

(as of January 2024)

1. General information

• The following General Terms and Conditions of Business and Use govern the legal framework for the use of the SaaS (System as a Service) online tool cream AI (beta) as well as the other AI-supported systems, consulting and service offerings of creamlabs AI GmbH and are part of every contract between creamlabs AI GmbH (hereinafter also referred to as "Provider") as provider of the software and services and the customer.
• By registering, the Customer acknowledges these General Terms and Conditions of Business and Use and assures that it is authorized to transmit the data for the purposes specified in these Terms and Conditions.
• Any terms and conditions of the customer that deviate from these terms and conditions shall not apply.

1. Scope of services

• The Provider offers commercial customers access to a web-based platform through which companies can provide their employees with access to image generation and image processing systems as well as other AI-supported systems. These functions can be executed via the website www.creamai.de without having to download a program. In addition, customers can use these applications to access external resources provided by third parties via API. The provider also offers services in the form of consulting and workshops by in-house, external and international experts (e.g. creamAI Knowledge Flatrate). The provider also supports the use of the platform with online videos and tutorials.
• The specific service descriptions of the individual packages or services offered are presented on the platform's website.
• The platform is under constant (further) development. The provider reserves the right to update, modify and expand the software and the services offered via the platform, insofar as this serves to improve the services and/or technical development makes this possible or necessary. This may result in changes to the appearance. Likewise, functions of the platform or its applications may be further developed, modified or removed in terms of functionality and/or content, or fundamentally new versions may be developed; the customer has no claim that any new functions can also be used with the service package booked by him. Should there be any changes, the provider shall notify the customer and provide relevant information. A change in this manner does not entitle the customer to terminate the contract prematurely.
• It is generally desired that the customer makes extensive use of the platform. For technical reasons (e.g. server capacity), however, there may be restrictions, for example in the operating speed of the platform.
• One is currently possible. Saving content generated by the customer The possibility of saving generated content on the platform and not having to download it immediately does not constitute a contractually owed function of the platform or a performance obligation of the provider. In particular, the customer has no claim to the possibility of saving generated content on the platform in the future.
• Neither the provider nor third parties within the meaning of paragraph (1) will use customer content as training data to improve or train their AI models.

1. Access to the platform and the AI-supported applications

• Access to the platform is granted to the customer's company by means of a customer account using the access data specified by the customer, which is entered via the platform's website. Initially, a free trial of the platform is possible, during which a limited number of generations can be generated. To use the platform on a permanent basis, the customer must book a base seat for a fee and can use this to book up to two small seats (supplementary accounts), which can only be used to generate a limited number of generators.
• The customer is obliged to inform the provider of any changes to the account and to delete access to employee accounts or to contact the provider if employees no longer have access to the website.

The Provider offers the Customer the fee-based use of the Platform for a specific contract term. At the end of the contract period, any files stored in the user account (e.g. generated images) can be downloaded for one month. After this period, the content will be deleted.

1. creamAI Knowledge Flatrate

• By additionally booking the "creamAI Knowledge Flatrate", the customer receives the opportunity to participate in or watch up to four virtual information events and workshops (sessions) or information broadcasts of the provider per month, in which new developments in the field of AI are reported, workshops on the topic of handling and working with AI and AI-supported tools are offered, and questions from customers on AI-related topics are answered (Q&A session). Customer questions can be sent to the provider in advance by e-mail or asked directly in live Q&A sessions.
• Users will be notified of the date and topic of the sessions by email at least one week before the date.
• The user has no right to demand that the sessions take place on specific dates and have a specific duration, or that the sessions are conducted by a specific lecturer.
• If a session cannot be held for reasons attributable to the lecturer (e.g. illness), it will be held on a date to be determined by the provider. It is also possible to combine this with a subsequent date with a corresponding extension of time.
• The other provisions of these terms and conditions of business and use apply accordingly to the sole use of the creamAI knowledge flat rate by the customer.

1. Rights and obligations of the customer

• The customer is responsible for setting up the technical requirements (current Internet browser and operating systems, possibility of using programs such as Zoom, recommended bandwidth of the Internet connection: 10MB upload / 16MB download) in order to be able to access the provider's services.
• The customer undertakes not to misuse the access options to the website and to refrain from all illegal activities. In particular, the customer is not permitted to transfer access to third parties or allow them to use the website. In this respect, the customer also undertakes to impose the obligations of these General Terms and Conditions of Business and Use on the company's employees who have access to the system.
• The customer undertakes to use the website only for the specified purpose. He undertakes to provide the required data carefully and to the best of his knowledge and not to provide any misleading information, and not to burden the service through improper use. When using the website, the customer undertakes not to use any software or other data that could lead to changes in the physical or logical structure of the website, the software and/or the operating system. The customer shall also take technical measures to ensure that third parties cannot gain unauthorized access to the website via their own system. The customer shall also ensure that the provider's service is not impaired by viruses, Trojans, worms or other technically harmful materials.
• The customer undertakes not to use the service that can be used via the website in a way that could disable, damage or impair it or interfere with the use of the service by other parties, including their ability to engage in real-time activities. The use of any robot, spider or other automatic device, process or means to access the Provider's Service, including monitoring or copying any of the Provider's material, is expressly prohibited.
• The Customer further undertakes to keep secret any passwords and/or registration data provided to him by the Provider for registration and to make them accessible only to those persons who have been effectively authorized by him to do so.
• The customer bears full responsibility for his activities while using the system. The customer agrees to comply with all applicable laws that apply to the use of the website. The Customer further agrees not to use the Website to engage in prohibited activities (such as the creation of sexual content) or to assist any other person or entity in engaging in prohibited activities. The provider reserves the right to punish violations of these conditions, to refuse access to the website in whole or in part or to take other legal action. The creation of sexual, religious and political content is strictly prohibited. The provider is entitled to block the user account after sending an error message.
• The customer agrees that the provider may advertise with the customer's logo on the website and in materials.

1. Software license

All rights to the software or the technical solutions on which this application is based, or which are embedded, integrated and connected to it, belong exclusively to the provider and/or its licensors. The provider grants the customer a freely revocable, simple, non-sublicensable, non-transferable right to use the software and/or other solutions integrated in the service within the scope and for the purposes of the intended use of the specified service. In particular, users are not granted any right to access the source code or to use or pass on the source code. Rights to all processes, algorithms and technical solutions contained or integrated in the software and all associated documentation belong exclusively to the provider or its licensors. All rights granted and licenses granted shall automatically lapse upon termination of the agreement - for whatever reason.

1. Generated content

The user receives all rights of use to the content generated by him. The provider shall not use or pass on the content generated by the user, not even for the purposes of AI training. The customer must ensure that the generated content does not violate the rights of third parties or applicable law.

1. Support

If the customer encounters errors when using the website that are the responsibility of the provider, the customer can contact the provider at the e-mail address"support@creamai.de". The provider will then contact the customer immediately.

1. Remuneration and terms of payment

The provider's remuneration is based on the service packages booked by the customer and is due for payment at the beginning of the term when the individual packages are ordered.

1. Term and termination

• The fee-based contract of use on which these Terms of Use are based is concluded for a term of 12 or 24 months. The term of the contract begins with the activation of the base seat.
• The term is extended by a further 12 months (in the case of a 12-month contract) or ) if it is not terminated with a notice period of 3 months to the end of the respective contract term. If the provider has changed the prices for the services it offers in the meantime, the changed prices shall only apply to the extended contractual relationship if the customer so requests.
• For other services that the Provider provides to the Customer, the statutory provisions shall apply to termination, unless otherwise contractually agreed.
• Each party has the right to terminate the contract for good cause without observing a notice period. An important reason for the provider is in particular

1. a breach by the customer or its employees of the provisions of these Terms of Use which is not remedied even after a deadline has been set;
2. a tortious act by the customer or its employees or an attempt to commit such an act, e.g. fraud; creation of criminally relevant content,
3. the user is more than 6 weeks in arrears with his payment obligations;
4. ongoing operational disruptions as a result of force majeure beyond the control of the provider, such as natural disasters, fire or a breakdown of line networks through no fault of the provider.

• All terminations must be made in writing. Cancellations by fax or e-mail comply with the written form requirement.

1. Liability of the provider for the services it provides

• The provider shall only be liable - irrespective of the legal grounds - if the damage

1. has been caused by culpable breach of one of the cardinal obligations or essential secondary obligations in a way that jeopardizes the achievement of the purpose of the contract or
2. is due to gross negligence or intent on the part of the provider.

• If the provider is liable for the breach of an essential contractual obligation without gross negligence or intent, the liability is limited to the extent of damage that the provider typically had to expect at the time of conclusion of the contract due to the circumstances known to him at that time. This applies in the same way to damages caused by gross negligence or intent on the part of employees of the provider's agents who are not members of the provider's management or executive staff. Liability for consequential damages, in particular for loss of profit or compensation for third-party damages, is excluded, unless the provider is guilty of intent or gross negligence.
• Claims for damages under the Product Liability Act and for damages resulting from injury to life, limb or health remain unaffected by the above limitations of liability.
• The provider is only liable for the loss of data to the extent that this could not have been avoided by taking reasonable precautions, in particular by making daily backup copies of all data and programs. The provider is not liable for loss of data of generated content stored by the customer on the platform. The possibility of being able to save generated content on the platform does not release the customer from the obligation to download the generated content immediately and to take suitable measures for data backup (see also Section 3 Para. 4).
• The Provider shall not be liable for any infringements of competition law, copyright law, trademark law, data protection law or other legal violations caused by content generated and/or edited by the Customer or its employees. The responsibility for the creation and use of the material lies solely with the customer.
• The customer shall indemnify the provider against all claims asserted by third parties due to the infringement of their rights or due to legal violations based on the content generated by the customer. In this respect, the customer shall also assume the costs of the provider's legal defense, including all court and legal fees.
• The customer can access external resources provided by third parties via API. The Customer acknowledges that the Provider has no control over such resources and is therefore not responsible for their content and availability. The conditions under which such resources provided by third parties are available and under which rights of use to such content are granted, if applicable, result from the contractual provisions of each third party or, alternatively, from the applicable regulations.
• Outages and disruptions to the services of third-party providers do not constitute a breach of contract by the provider or a defect in the services offered by the provider. The same applies to changes to the services of third-party providers that lead to a change or reduction in the functional scope of the services provided by the provider.

1. Troubleshooting

The provider shall rectify any faults that occur during normal working hours. Response and recovery times are not specified.

1. Data protection provisions

The Provider shall store and process the Customer's personal data in compliance with the applicable statutory provisions solely for the purpose of fulfilling this contract. The personal data provided by the customer for the fulfillment of this contract shall be processed and used exclusively on the provider's server, insofar as they are required for the establishment, execution, amendment or termination of this contract. The Provider is entitled to transmit the data to third parties commissioned by it as soon as this is necessary to enable the applicant to fulfill its obligations under this contract. The customer can revoke the consent given for this at any time with effect for the future. In the event of revocation by the customer, use of the provider's services is no longer possible. In this case, there is no entitlement to a refund of any remuneration already paid. For details on the handling of data, please refer to the separate data protection provisions.

1. Confidentiality and customer protection

The parties mutually undertake to maintain absolute confidentiality vis-à-vis third parties regarding all business transactions of which they become aware in the course of their cooperation, in particular regarding business and trade secrets. The confidentiality obligation shall continue to exist after the termination of the contract.

All mutually exchanged business documents must be carefully stored on the parties' own business premises and protected from unauthorized access.

1. Final provisions

• The customer's general terms and conditions shall not apply, even if their inclusion has not been expressly objected to.
• Amendments, supplements and terminations of the contract concluded between the parties must be made in writing. Cancellation of the contract or an amendment to this written form clause must also be made in writing. No verbal collateral agreements have been made.
• The law of the Federal Republic of Germany shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods, even in the case of use from abroad.
• The place of performance and jurisdiction is the registered office of creamlabs AI GmbH if the customer is an entrepreneur.
• Should any provision of these General Terms and Conditions of Business and Use be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision that comes as close as possible to what the parties intended, taking into account economic aspects. The same applies in the event that any additions become necessary**.