TERMS & CONDITIONS

Last Updated: March 26, 2024

These Poser™ Terms & Conditions (“Terms”) are a legally binding agreement between Poser, Inc. (together with our subsidiary and parent entities, “Poser,” “Company, “we,” “us,” or “our”) and you (“you” or “your” or “User”). Our Privacy Policy explains how we collect and use personal information.

These Terms govern your access to and use of our website, artificial intelligence models, products, tools, services (including web interfaces and application programming interfaces (“APIs”)), and all other software, content, and other intellectual property we may make available to you (our “Services”), whether as a guest or registered user.

If you accept these Terms on behalf of an entity, “User,” “you,” and “your” apply to you and that entity collectively, and you represent and warrant that you are authorized to bind that entity. By using our Services, you confirm that you are at least 18 years of age, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I Agree/I Accept/Sign Up” (or similar button or checkbox) that is presented to you. If you do not meet all of these requirements, you must not access or use the Services.

Please read these Terms carefully before you access or use our Services. By accessing or using our Services or by clicking to accept or agree to the Terms of Use when this option is made available to you, you agree to be bound by, and comply with, these Terms. Your access or use of our Services is conditioned on your ongoing compliance with these Terms. If you do not agree to these Terms, or have a concern with our Privacy Policy, you may neither access nor use our Services.

THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION, THAT AS FURTHER EXPLAINED IN THE “GOVERNING LAW AND ARBITRATION” SECTION BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND.

Changes to Terms and Services

Poser may revise these Terms from time to time in our sole discretion.; If, after receiving notice of our revisions (such notice may be provided via an email sent to the address associated with your account, a notice delivered through or posted on the Services, or through any other reasonable means), you continue to access or use the Services, you agree that such access or use will constitute your acceptance of, and assent to, the revised Terms. If you do not agree to the updated Terms, you must stop accessing and using our Services. All changes are effective immediately, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set forth in Governing Law and Arbitration section will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Services.

We reserve the right to change, suspend, or discontinue the Services or your access to the Services at any time, in our sole discretion.

Accessing the Services and Account Security

To access the Services, you may need to register for an account. You agree that all information you provide to us in connection with your account will be correct and kept current. You agree that we may use the information you provide to us to communicate with you and that such communications will satisfy any requirements for legal notice to the full extent permitted under applicable law.

You are not permitted to provide your access credentials to, or otherwise make access to or use of our Services through your account available to, any other person. You must treat your access credentials as confidential and take care to protect them from unauthorized use. You must promptly notify us of any confidentiality breach involving, or unauthorized use of, your access credentials. You are solely responsible for all activity that occurs using your credentials. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

You are responsible for both:

Making all technical and other arrangements (including internet connectivity) necessary for you to have access to the Services; and

Ensuring that all persons who access the Services through your account, connection or equipment are aware of these Terms and comply with them.

Further, you bear sole responsibility for adequate backup of Your Content and Generated Assets (as such terms are defined below). We shall have no liability to you for any unauthorized access or use, any corruption, deletion, destruction or loss of any of Your Content and Generated Assets.

Content

Inputs and Your Content Our Services may allow you to submit reference images, text, or other inputs to be processed by our Services (“Your Content”). You are responsible for all Your Content sent through your account or provided to us in connection with the Services. You represent and warrant that (1) you have all necessary rights, licenses, and permissions to provide Your Content to Poser, (2) your provision of Your Content does not violate any applicable laws or these Terms, and (3) Your Content does not violate any applicable law, rule, or regulation.

Without limiting the foregoing, Your Content must not: (a) contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable; (b) promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (c) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations; or (d) impersonate any person, or misrepresent your identity or affiliation with any person or organization,

You understand and acknowledge that you are responsible for any of Your Content you submit or contribute, and you, not Poser, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.

Outputs. Our Services may generate images or other outputs based on Your Content (“Generated Assets”). Subject to payment in full of all Fees, you retain any right, title, and interest you have in any Generated Assets. User acknowledges that, due to the nature of machine learning, the Generated Assets may be inaccurate, incomplete, or similar or identical to third party materials. You are solely responsible for evaluating and determining whether the Generated Assets are appropriate for your intended use case. You are solely responsible for your use of such Generated Assets and we make no representations or warranties with respect to the Generated Assets. You also acknowledge that the Services may provide outputs to third parties that are similar or identical to Generated Assets and that User has no right, title, or interest in or to any such outputs.

User Poser. You may, or may ask Poser to, modify, fine tune, or provide prompts engineered for, a machine learning model based on a third-party model (a “User Poser”). Other terms and conditions may also be applicable to such User Poser and User agrees to, and will, comply with the applicable third party terms with respect to such User Poser.

Use of Materials. To the extent not publicly available or received by us from a third party, the only AI model we will use your Generated Assets (other than metadata, as described below) and reference images to train is your User Poser (if you have one). Note that if you post your Generated Assets on the internet, then it is at least theoretically possible that someone may train a model on it. In addition, we may use metadata associated with your Generated Assets to train our AI models. You hereby grant Poser a perpetual and irrevocable license to use Your Content metadata associated with Generated Assets to improve the Services.

Usage Data. “Usage Data” means information generated, collected, or derived from use of the Services, including (1) data related to the performance, operation, and utilization of the Services, (2) information about the type and frequency of use of the Services, (3) device and connection information, and (4) other data and information related to the use, operation, and performance of the Services. Poser owns all Usage Data.

Feedback.Feedback” means all feedback, ideas, or suggestions you provide to us, whether directly through use of the Services or otherwise. We appreciate your Feedback. If you provide Feedback, you hereby grant us a perpetual, irrevocable, royalty-free, sub-licensable, and transferable right and license to freely use such Feedback.

Usage Restrictions

You are not permitted to, and you represent and warrant that you will not, and you will ensure that no other party using your account credentials will:

  • Use our Services or create or exploit any Generated Assets in a manner that, or in connection with any activity that, violates any applicable law, rule, or regulation, including laws regarding defamation, intellectual property, privacy, rights of publicity, and child sexual abuse material.
  • Use our Services or Generated Assets to generate deceptive, hateful, harmful, obscene, offensive, or pornographic content, or otherwise in connection with the abuse, bullying, disparagement, harassment, harming, or stalking of any person or group of persons.
  • Crawl, scrape, or otherwise extract or harvest data or other information (including third party content) from our Website or Services.
  • Access or use our Services through use of any robot, spider, crawler, or other automated mechanism.
  • Send or otherwise share with us any personal information (including images) of any child under the age of 13.
  • Gain or attempt to gain unauthorized access to any of our Services or to any Poser computer, database, or server.
  • Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or other underlying elements that comprise or power our Services, except to the extent such restriction is expressly prohibited by applicable law.
  • Use any intellectual property of Poser to develop, train, or otherwise improve any artificial intelligence algorithm, model, or program.
  • Access or use our Services to develop any model or other offering that competes with Poser or our Services.
  • Misuse our Services, including by introducing any viruses, malware, or other materials that are harmful to our Services or underlying technology.
  • Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
  • Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Poser or users of the Services, or expose them to liability.

Use any device, software or routine that interferes with the proper working of the Website.

Content Standards

These content standards apply to any and all Your Content and use of the Services. Without limiting any other provisions of these Terms, Your Content must not:

  • Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
  • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  • Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy.
  • Be likely to deceive any person.
  • Promote any illegal activity, or advocate, promote or assist any unlawful act.
  • Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  • Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
  • Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
Location

The Services are operated by Poser in the United States. Those who choose to access the Service from locations outside the United States do so at their own initiative and are responsible for compliance with all applicable local laws.

Export Controls

You are responsible for complying 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, warrant and covenant that you are not (1) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (2) on any of the U.S. government lists of restricted end users. You may not, and you represent and warrant that you will not, use the Services in or for the benefit of, or export or re-export into any U.S. embargoed country or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, or any other restricted parties list identified by the Office of Foreign Asset Control, or the U.S. Department of Commerce.

Ownership of the Services

Ownership of the Services. As between Poser and User, Poser owns and retains all right, title, and interest in and to the Services. Except as expressly granted in these Terms, User does not receive any right, title, or interest in or to our Services. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.

Use of Poser Brands. The Poser name, the terms Poser, its logos and all related names, logos, product and service names, designs and slogans are trademarks of Poser or its affiliates or licensors. You may not use Poser’s name, logos, or trademarks without our prior written consent.

Ownership of Your Content. As between you and us, (1) Your Content is your property, and (2) you retain any and all rights, title and interest in and to Your Content. Our use of Your Content shall be limited to our providing the Services to you and your users or as otherwise permitted under these Terms.

Ownership of Generated Assets. As between you and Poser, you own the Generated Assets that you produce using the Services to the extent permitted by applicable law. Poser makes no representation or warranty as to the validity or enforceability of any intellectual property rights that you may claim in your Generated Assets.

You are responsible for Generated Assets, including for ensuring any posting, publishing, sharing or other use of Generated Assets does not violate any applicable law, intellectual property right of any third party, or these Terms. We shall have no liability for any third-party claim, (1) contesting or otherwise disputing your ownership of or authority to use Your Content (and/or Generated Assets, due to the infringing nature of Your Content); or (2) Your Content (and/or Generated Assets, due to the infringing nature of Your Content) infringing intellectual property rights or any other rights of a third-party.

Limited License to Your Content and Generated Assets to Provide the Services. You hereby grant us, and our affiliates and applicable contractors a worldwide, non-exclusive, royalty-free, right and license to receive, host, store, analyze, process, enhance, copy, transmit, create derivative works of, maintain and display Your Content and Generated Assets (a) to provide the Services in accordance with these Terms, (b) to generate Usage Data which we may use for any business purpose during or after the term of your Services (including without limitation to develop and improve our products and services), and (c) to use Generated Assets for our marketing, advertising and other promotional purposes. For the avoidance of doubt, we shall own all right, title and interest in and to the Usage Data including without limitation all intellectual property rights therein.

Confidentiality

Confidential Information. “Confidential Information” means any confidential, non-public or proprietary information disclosed by Poser to User that is marked “Confidential” or “Proprietary” or that a reasonable person would believe to be confidential given the circumstances. Notwithstanding the foregoing, Confidential Information does not include any information that (1) is or becomes publicly known through no act or omission of the User, (2) was rightfully known by User without confidential or proprietary restriction before receipt from the Discloser, (3) becomes known to the User from a third party, or (4) is independently developed by the User without reference to the Confidential Information of the Discloser.

Non-Disclosure and Limited Use. User may only disclose Confidential Information to its and employees and advisors, in each case, who have a need to know such Confidential Information and are bound by confidentiality terms at least as restrictive as the ones in these Terms.

Permitted Disclosures. Notwithstanding the non-disclosure obligations set forth above in this “Confidentiality” section, you will be permitted to disclose Confidential Information to the extent approved in writing by Poser or to the extent required by applicable law, regulation, court, or administrative order, provided that (to the extent permitted by applicable law) you provide Poser notice prior to such disclosure.

Fees & Payment

Fees. You may be required to pay certain subscription, periodic, transactional or other fees to use our Services (or certain functionality included in our Services). You agree to pay all fees charged or invoiced to you, including any applicable taxes (“Fees”) according to our Pricing Schedule, or as otherwise agreed to by you and Poser. “Pricing Schedule” means the schedule of Poser list prices for Services, which may be made publicly available through a web page(s) or otherwise or made available to you through the Services.

Taxes. The Fee amounts listed within the Services or any agreement between you and Poser are exclusive of taxes. We will charge you taxes in addition to the agreed-to fees as required by applicable law. You are responsible for, and agree to pay and indemnify Poser for, all applicable taxes.

Free Trials or Evaluations. Poser may, from time to time, offer free trials or similar free or discounted promotions to try certain features or products (collectively, “Evaluation Services”). You may not create more than one account to gain access to free trials or other free or discounted Services. If you do not use our free trials and any other free Services in good faith, we may charge you standard fees and ban you from use of our Services. Unless otherwise stated in a Services Agreement (as defined below), any Evaluation Services trial period shall expire 30 days from the free trial start date. Notwithstanding the foregoing, we may discontinue Evaluation Services at any time at our sole discretion and may never make any Evaluation Services generally available. We shall have no liability for any harm or damage arising out of or in connection with any Evaluation Services.

Payment. You agree to provide complete and accurate billing information and a valid and authorized payment method. You authorize Poser and its third-party payment processors to charge your payment method for Fees. Fees may be usage based or may be charged monthly, yearly or other periodic basis (depending on which pricing plan and services you use). If Fees are recurring or based on usage, you agree that Poser and its third-party payment processors may charge your payment method for such Fees on a recurring basis. All Fees are payable in U.S. dollars.

Late Payments. If any amount owing by you for the Services is 10 or more days overdue, we may, in our sole discretion and without limiting our other rights and remedies, suspend your access to the Services and/or otherwise limit the functionality of the Services until such amounts are paid in full, or terminate the account. If we suspend, limit, or terminate the Services pursuant to this paragraph, then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such actions. Additionally, any payments more than 10 days overdue shall bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law.

Third Party Payment Processors. We may use one or more third-party payment services to bill you for any Fees rather than directly processing your credit card information. By submitting your payment account information, you grant us permission to store and process the information with the third-party payment services, which may change from time to time. You acknowledge that we are not responsible for any failure of the third party, including with respect to the protection of your information. The processing of payments is subject to the terms, conditions, and privacy policies of the third-party payment service, in addition to these Terms.

Fee Changes. Unless otherwise provided in a separate agreement, Fee amounts are subject to change at any time in our sole discretion. Unless otherwise communicated to you by us in writing, changes to the fees will be effective 10 days after they are posted to our Pricing Schedule. If you are on an annual plan (i.e., pay upfront for a year of access to the Services), any price updates will only come into effect at the start of the next-year term. If you are on a monthly plan, any price updates will only come into effect at the start of the next-month term.

No Refunds. All fees are non-refundable and non-creditable, to the fullest extent permitted under applicable law."

Term and Termination

Unless otherwise provided for in a separate agreement, Poser may terminate these Terms at any time by providing you notice of the same. These Terms automatically terminate upon your breach of these Terms.

You may terminate these Terms by discontinuing access to or use of the Services and, if you are a paying customer, canceling your plan in accordance with the procedures described on our website.

This paragraph and the following Sections shall survive any expiration or termination of these Terms:

  • Content
  • Usage Restrictions
  • Location
  • Ownership of the Services
  • Confidentiality
  • Fees & Payment (so long as any amounts remain outstanding)
  • Third Party Materials and Links
  • Copyright Infringement Claims
  • Disclaimer of Warranties, Limitations of Liability and Indemnification
  • Governing Law and Arbitration
  • Export Controls
  • General Provisions
Third Party Materials and Links

Certain functionality provided in connection with the Services may make available to you information, products, services, or other materials made available by third parties (or access to the same), including OpenAI, Leap, SendGrid, MongoDB, and third-party machine learning models (collectively, “Third Party Materials”). By using such functionality, you are directing us to access, route, and transmit to you the applicable Third Party Materials. Our Services may include open source software that is governed by its own licenses that we’ve made available to you.

We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, reliability, quality, legality, or safety of any Third Party Materials, or any intellectual property rights therein. Nothing in these Terms (or any other agreement entered into by you and Poser) will be deemed to be a representation or warranty by us with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials and may block or otherwise limit access to any Third Party Materials at any time.

Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions, and policies applicable to such Third Party Materials.

Security of the Services; Protection of Your Content. We will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content or Generated Assets. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Your Content or Generated Assets (other than by you or your authorized users). We will not be responsible or liable for any deletion, correction, damage, destruction or loss of Your Content or Generated Assets that does not arise from a breach by us of our obligations under this paragraph.

Copyright Infringement Claims

The Digital Millennium Copyright Act of 1998 (the “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 Services infringe your copyright, you (or your agent) may send to Poser a written notice by mail or e-mail, requesting that we 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 Poser 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 Poser’s DMCA Agent as follows: By email to legal@poser.xyz with subject “DMCA Takedown Request” and by mail to Attn: Copyright Agent, Poser, Inc., 260 E. Brown St., Suite 200, Birmingham, MI 48009, United States. To protect the rights of copyright owners, we reserve the right to suspend any account or other privileges, delete or disable content alleged to be infringing, or terminate the account or other user privileges of a repeat infringer.

We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice. Any person who knowingly and materially misrepresents that material or activity is infringing or that material or activity was removed or disabled by mistake or misidentification, may be liable under Section 512(f) of the DMCA for damages incurred by the alleged infringer, by any copyright owner or authorized licensee, or by a service provider (like Poser), who is injured by such misrepresentation.

Disclaimer of Warranties, Limitations of Liability and Indemnification

Disclaimer of Warranties. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (1) THE SERVICES AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS-IS,” “WHERE-IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (2) POSER DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND(INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF BOTH POSER AND ITS CURRENT AND FUTURE AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES,LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.

While we try to maintain the integrity and security of the Services, we do not guarantee that the Services is or will remain updated, error-free, complete, correct, secure, or that access to the Services will be uninterrupted. Poser makes no representations or warranties with respect to any Services, Your Content, Generated Assets, User Posers, or Third Party Materials.

The foregoing does not affect any warranties which cannot be excluded or limited under applicable law.

Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL WE, OUR AFFILIATED ENTITIES, OR OUR OR THEIR RESPECTIVE AFFILIATES, INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “POSER PARTIES”), BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, THE MATERIALS, THIRD PARTY MATERIALS, USER MODELS, OR THESE TERMS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, EVEN IF ANY POSER PARTIES HAVE BEEN ADVISED OFTHE POSSIBILITY OF DAMAGES, AND EVEN IF THE DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE POSER PARTIES’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OFOR IN ANY WAY RELATED TO THE SERVICES, THE MATERIALS, USER MODELS, OR THESE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF THE AMOUNT YOU PAID TO US FOR ACCESS TO OR USE OF THE SERVICES (IF ANY) IN THE TWELVE MONTHS PRECEDING THE DATE SUCH DAMAGES, LOSSES,AND CAUSES OF ACTION FIRST AROSE AND $100. THE FOREGOING LIMITATIONS ARE ESSENTIAL TO THESE TERMS AND WE WOULD NOT OFFER THE SERVICES TO YOU UNDER THESE TERMS WITHOUT THESE LIMITATIONS.

The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification. You agree to indemnify, defend, and hold harmless the Poser Parties against liabilities, damages, and costs (including reasonable attorneys’ fees) payable to a third party arising out of or related to (1) your breach or alleged breach of these Terms or our Privacy Policy, (2) Generated Assets (including any use by you or any other party), or (3) your fraud, willful misconduct or gross negligence.Poser reserves the right to engage separate counsel and, at its election, assume the exclusive defense and control of any matter subject to indemnification and you agree to cooperate with us fully, as we may reasonably request.

Governing Law and Arbitration

Opt-Out. If you are an individual consumer, you can opt out of arbitration within 30 days of the date that you first agreed to these Terms (including any earlier version). If you are an individual consumer and have previously agreed to arbitration, then you may opt out of any future revisions to the arbitration provision within 30 days of receiving notice of the updated arbitration provision, in which case the prior version of the arbitration provision will apply. To opt out of arbitration (or revisions to this arbitration provision), you must send your name, address, username, email or phone number you use for the Services, and a clear statement that you want to opt out of arbitration pursuant to Section 11(a) and any revisions thereof, and you must send them here: Poser, Inc., ATTN: Arbitration Opt-Out, Poser Inc, 260 E. Brown St., Suite 200, Birmingham, MI 48009, United States. You must sign the opt-out notice for it to be effective.

Arbitration. Notwithstanding anything to the contrary in these Terms, except if you opt-out or for disputes relating to our intellectual property or intellectual property rights, you agree that all disputes between you and us (whether or not such dispute involves a third party) arising out of or relating to these Terms, our Services, or our Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language in the State of Michigan. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures and in accordance with the Expedited Procedures in those Rules, and the parties hereby expressly waive trial by jury. The parties shall appoint as sole arbitrator a person mutually agreed by you and us or, if the parties cannot agree within 30 days of either party’s request for arbitration, such single arbitrator shall be selected by JAMS upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms.

Class Action Waiver. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND POSER AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND NEITHER YOU NOR POSER WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTSOR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. CLASS ACTIONS AND CLASS ARBITRATIONS ARE NOT PERMITTED. You hereby waive any and all rights to bring any claims related to these Terms or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You understand and agree that you may bring claims only on your own behalf as an individual.

Effect of Changes on Arbitration. Notwithstanding anything to the contrary in these Terms, you and we agree that if we make any change to the arbitration procedures (other than a change to any notice addressor website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the arbitration procedures from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the arbitration procedures is posted to our website, and will not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.

Governing Law. These Terms, and any dispute between you and us, shall be governed by the laws of the State of Michigan without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth in this “Governing Law and Arbitration” section.

Third Party Beneficiaries. All Poser Parties are intended third-party beneficiaries of this “Governing Law and Arbitration” section.

General Provisions

Agreement Structure and Order of Precedence. If there are any conflicts between these Terms and any other written agreement between Poser and you with respect to the Services (a “Services Agreement”), such Services Agreement takes precedence and prevails over these Terms, solely with respect to the subject matter of the applicable Services Agreement.

Entire Agreement. These Terms, together with any Services Agreement and any other terms referenced herein, form the entire agreement between you and Poser relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Poser relating to such subject matter.

Assignment. These Terms may not be transferred or assigned by you without our prior written consent.

Severability. These Terms will be enforced to the maximum extent permissible and any invalidity or unenforceability of one portion of the Terms will not affect the enforceability of any other portion.

Force Majeure. Poser will not have any liability for failure or delay resulting from conditions beyond its reasonable control.

No Agency. These Terms do not create any agency, partnership, or joint venture between you and any of the Poser Parties. Poser and you are independent contractors and neither of you nor Poser has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

Miscellaneous. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision. No waiver by you or us of any breach or default under these Terms will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified herein. Any use of the term “including” or variations thereof in these Terms will be construed as if followed by the phrase “without limitation.” “Or” will be read to be non-exclusive.