Post By: Safer / 14 min read
Effective: January 19, 2022
These Terms and Conditions (“Terms and Conditions”), when taken together with an Order Form, constitute the Safer Enterprise Agreement (the “Agreement”) entered into between Thorn and Company. Capitalized terms used by not defined in these Terms and Conditions have the meanings given to them in the Order Form.
1.1 “Company Query Data” means information that identifies Company in combination with: (i) a list of Queries Company has submitted to the Service; (ii) a list of Results Company has received from the Service; or (iii) statistical or aggregated information regarding the number of positive or negative Results received from the Service or the amount of Metadata received from the Service, in each case, in such a manner as to provide substantive information regarding the frequency of detection of possible child sexual abuse material (“CSAM”) on Company’s platform(s) or service(s). Company Query Data does not include, by way of example and not limitation: (a) individual Results provided to users of the Service in response to Queries (which, for clarity, may identify the source of such Results); (b) the number or timing of Queries made by Company; or (c) aggregated or statistical detection rates or Results, if the Company Query Data is aggregated together with the data of at least three other users of the Service.
1.2 “Feature” means identifying or descriptive information algorithmically generated from an item of digital imagery, where such information does not include such digital imagery or sufficient information to recreate such digital imagery. Features include both Hashes and other identifying or descriptive information (such as, for example, the set of colors used in a particular item of digital imagery).
1.3 “Hash” means a numeric identifier that is algorithmically generated from an item of digital imagery.
1.4 “Metadata” means, with respect to a particular Query or the underlying digital imagery, information related to such Query or digital imagery, which may include classification information and historical information.
1.5 “Query” means a request for information from the Service that is based upon a Hash and/or Features arising from a particular item of digital imagery.
1.6 “Result” means the information returned by the Service in response to a Query, which Result may or may not include Metadata.
1.7 “Software” means any and all software provided as part of the Service, and includes any related updates, upgrades, and documentation.
1.7 “Term” has the meaning set forth in Section 9.1.
2 DETECTION SERVICE
2.1 Access by Company. Subject to the provisions of the Agreement, Company may access and use the Service during the Term.
2.2 Queries. Company may submit Queries to the Service and may receive Results in response, in each case, through the application programming interfaces and other interfaces provided by Thorn for that purpose.
2.3 Usage Restrictions. Company will not: (i) make the Service available to any third party or use or include the Service (or any portion thereof) in any service bureau or outsourcing offering; (ii) interfere with or disrupt the integrity or performance of the Service, including by submitting an unreasonable number of Queries or a set of Queries designed to eventually collect all Metadata in the Service; or (iii) attempt to access the Service or its related systems, data, or networks, except as expressly authorized by the Agreement.
2.4 Submission of Metadata. Company will provide to Thorn Metadata for inclusion in the Service, subject to Section 6.2.
2.5 Suspension. Thorn may suspend access to the Service at any time without notice if Thorn reasonably believes, in its sole and absolute discretion, that the security, integrity, or performance of the Service or the underlying data is threatened.
3.1 Software License. Thorn grants Company a non-exclusive, non-transferable (except as set forth in Section 10.1), non-sublicensable, fully-paid, royalty-free, worldwide license during the Term to reproduce and use the Software provided by Thorn to Company hereunder, only: (i) internally; (ii) in compliance with the Agreement; and (iii) for the purpose of identifying, preventing, removing, and/or reporting CSAM from Company’s online platforms and services. Except as set forth in this Section 3.1, Company acknowledges that, as between Thorn and Company, Thorn owns all right, title and interest, including all intellectual property rights, in and to the Service and Software.
3.2 License Restrictions. Company will not, and will not encourage or assist any third party to: (i) distribute, sell, lease, license, or sublicense the Software; (ii) use or export the Software in any manner that violates any applicable law; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or algorithms of the Software; or (iv) combine or incorporate the Software together with any software that is subject to a license requiring that software so combined or incorporated be: (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge.
3.3 Feedback License. If Company provides bug reports, feature ideas, results, or other feedback (“Feedback”) to Thorn regarding the operation, content, design, interfaces, or other features and functionality of the Software or the Service, Thorn may use such Feedback without restriction, and Company hereby grants Thorn a non-exclusive, non-transferable (except as set forth in Section 10.1), perpetual, irrevocable, fully-paid, royalty-free, worldwide license to use such Feedback for any purpose.
3.4 Third-Party Technologies. The Software may support certain third-party software, including without limitation, certain software algorithm implementations provided by third parties, such as Microsoft’s PhotoDNA software and Google’s CSAI Match software (collectively, “Third-Party Technologies”). If Company wishes to use Third-Party Technologies, Company is solely responsible for obtaining appropriate licenses and compatible software from the respective third party licensors. Third-Party Technologies are not products of Thorn, and Thorn does not guarantee their function or their interoperability with the Software. Unless explicitly prohibited in the Agreement, nothing in the Agreement limits or is intended to limit Company’s rights to obtain or use such Third-Party Technologies under such applicable third-party license terms.
3.5 Third-Party Software. The Software may contain third-party software components that are provided under applicable third-party license terms, including open source license terms.
3.6 Reservation of Rights. Except for the license expressly set forth in this section, Thorn does not grant any other licenses to Company, whether by implication, estoppel, or otherwise.
4.1 Fees. Company will pay Thorn the amounts set forth in the Order Form commencing as of the Service Start Date (“Fees”).
4.2 Payment Terms. Thorn will invoice Company for the Fees pursuant to the Order Form, and Company will pay each invoice within 30 days of the date thereof. If Company disputes any portion of an invoice, it will pay the undisputed portion of that invoice within 30 days of the date thereof, and the parties will use commercially reasonable efforts to resolve the disputed portions. If the parties are unable to resolve the disputed portions of the invoice within 60 days of the date thereof, Thorn may suspend the portion of the Service that is the subject of the dispute without penalty or offset. Any failure or delay by Thorn to invoice Company in a timely manner for owed Fees, including but not limited to any overage amount, will not be deemed a waiver of any such Fees.
4.3 Taxes. Fees are payable without deduction for taxes or duties of any kind. Company will pay any taxes (including value-added, sales and use, and withholding taxes) arising from Company’s payments made under the Agreement or Company’s use of the Service or receipt of the Software, but not including any taxes based on Thorn’s net income. If Company is required under any applicable law or regulation to withhold or deduct any portion of the Fees, then the sum payable to Thorn will be increased by the amount necessary so that Thorn receives an amount equal to the sum it would have received had Company made no withholdings or deductions.
5.1 Definitions. “Discloser” means either party, when disclosing its Confidential Information to the other party hereunder. “Recipient” means either party, when receiving Discloser’s Confidential Information hereunder. “Confidential Information” means the terms of the Agreement, as well as any other non-public information that a party provides to the other in connection with the Agreement that the Recipient knew or reasonably should have known was confidential, and: (i) with respect to Thorn, the Software and all Metadata provided to Company hereunder; and (ii) with respect to Company, the Company Query Data. Notwithstanding the foregoing sentence, Confidential Information will not include any information that: (a) is or becomes publicly known or generally available without a duty of confidentiality through no wrongful action or inaction of Recipient; (b) is in the rightful possession of Recipient without confidentiality obligations at the time of disclosure; (c) is obtained by Recipient from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (d) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information.
5.2 Maintenance of Confidentiality. Except as expressly set forth in this section or except with the prior written permission of Discloser, Recipient will not: (i) use or disclose Confidential Information for any purpose except to further the Mission, including, but not limited to the extent relevant to and/or requested in connection with a child welfare case, criminal prosecution, or other legal action; or (ii) disclose Confidential Information to any third party except as expressly set forth in this section. Recipient may disclose Confidential Information: (a) to Recipient’s employees, contractors and representatives who have a “need to know” such information to perform the obligations set forth in the Agreement and for the Mission, subject in each case to reasonable contractual confidentiality obligations no less protective of the Confidential Information than Recipient employs to protect its own confidential information of a similar nature, but in no event less than reasonable care; and (b) to the extent such disclosure is legally compelled by judicial order or applicable law if Recipient uses commercially reasonable efforts to: (1) promptly notify Discloser of such legal request before making any disclosure; and (2) comply with Discloser’s reasonable requests to oppose or limit the disclosure (at no cost to Recipient). If no such protective order or other remedy is sought or obtained pursuant to this section, Recipient may disclose only that portion of Confidential Information that is legally required to disclose and will use reasonable efforts to ensure that the Confidential Information disclosed will be accorded confidential treatment.
5.3 Duration. The obligations set forth in this Section 5 will continue during the Term and for five years thereafter.
6.1 Disclaimer Regarding Results. Thorn obtains Metadata from various sources, which may be used to generate Results provided to Company hereunder. Thorn does not corroborate or confirm that the Metadata or Results are correct. Further, it is mathematically possible for two different digital images to produce similar Hashes or Features, which can theoretically lead to incorrect Results. COMPANY ACKNOWLEDGES THAT RESULTS OBTAINED THROUGH THE SERVICE MAY NOT BE COMPLETE, RELIABLE, OR TRUE, AND THAT THE IMAGERY FROM WHICH A HASH OR FEATURE IS GENERATED MAY OR MAY NOT CONSTITUTE CSAM REGARDLESS OF WHETHER A QUERY TO THE SERVICE GENERATES A NEGATIVE RESULT, A POSITIVE RESULT, OR A RESULT THAT INCLUDES METADATA. THE SERVICE IS INTENDED ONLY AS AN INITIAL SCREENING TOOL TO TRIGGER APPROPRIATE FURTHER REVIEW AND/OR MEASURES IN ACCORDANCE WITH APPLICABLE LAW AND COMPANY’S POLICIES.
6.2 Disclaimer Regarding Software. The Software and Service are provided “as is”, with all faults, and without any warranty of any kind, including as to accuracy or completeness. Each party is solely responsible for its own use of all Hashes, Features, Queries, Results, Metadata, and other information exchanged hereunder. THORN EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THORN DOES NOT WARRANT THAT THE SOFTWARE OR SERVICE WILL MEET COMPANY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, IS ACCURATE, ERROR-FREE, SUITABLE FOR ANY PARTICULAR PURPOSE, OR THAT ANY FLAWS WILL BE CORRECTED.
7 LIMITATIONS OF LIABILITY
7.1 Limitation on Type of Damages. EXCLUDING DAMAGES THAT RESULT FROM A PARTY’S BREACH OF LICENSE RESTRICTIONS UNDER SECTION 3, CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR NON-DISCLOSURE/PUBLICITY OBLIGATIONS UNDER SECTION 10.8, (COLLECTIVELY, “CARVE-OUT CLAIMS”), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Limitation on Aggregate Liability. EXCLUDING CARVE-OUT CLAIMS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING UNDER THE AGREEMENT EXCEED THE GREATER OF $10,000 OR THE AGGREGATE FEES PAID OR PAYABLE TO THORN IN RESPECT OF THE 12 MONTHS IMMEDIATELY PRECEDING THE ACTS OR CIRCUMSTANCES FROM WHICH SUCH LIABILITY AROSE.
7.3 Application. But for the provisions of Sections 6 and 7, the Service and the Software would not be provided under these terms. Accordingly, such provisions are an essential element of the bargain between the parties, and will apply to the maximum extent allowed by law and regardless of the failure of essential purpose of any limited remedy. For clarity, nothing in Section 6 or 7 purports to waive any liability that cannot be waived by applicable law.
8.1 Third-Party Technologies, software, or products. Subject to Section 8.3, Thorn will defend, indemnify, and hold Company harmless against any and all claims, damages, costs, losses, liabilities, and expenses (including reasonable attorneys’ fees) (collectively, “Damages”), to the extent arising from any third-party claim, suit, action or proceeding (“Claim”), to the extent the Service or Software, when used in the manner authorized by the Agreement, infringes or misappropriates any intellectual property right of such third party. This Section 8.1 will not apply to the extent the alleged infringement or misappropriation arises from: (i) use of the Service in combination with data, software, hardware, equipment, or technology not provided or authorized by Thorn; (ii) modifications to the Service or Software not made by Thorn; or (iii) Third-Party Technologies, software, or products.
8.2 General Indemnity. Subject to Section 8.3, Company will defend, indemnify, and hold Thorn harmless against any and all Damages arising from any Claim based on: (i) Company’s negligence, willful misconduct, breach of the Agreement, or violation of law; (ii) Company’s use or application of the Software and/or Service within its own infrastructure (if applicable); or (iii) Thorn’s use or processing of certain proprietary formats, including, without limitation, High Efficiency Image File Format (HEIF) files or High Efficiency Image Container (HEIC) files, as part of the Software or to provide the Service to the Company.
8.3 Procedure. Either party that is indemnified under this Section 8 (“Indemnitee”) will give to the other party (“Indemnifying Party”): (i) prompt written notice of any claim for which indemnification may be sought; (ii) sole control over the defense and settlement of such claim, but Indemnifying Party will not, without Indemnitee’s prior written consent, settle such claim in a manner that admits wrongdoing by Indemnitee, imposes any obligation on Indemnitee, or otherwise negatively impacts Indemnitee’s reputation; and (iii) all information and assistance reasonably requested by Indemnifying Party in connection with the defense or settlement of such claim. Indemnitee may (but is not required to) participate in such defense, at its own expense and with counsel of its choosing.
8.4. THIS SECTION 8 SETS FORTH COMPANY’S SOLE REMEDIES AND THORN’S SOLE LIABILITY AND OBLIGATIONS FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE SOFTWARE AND/OR SERVICE INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.
9 TERM & TERMINATION
9.1 Term and Automatic Renewal. The initial term of the Agreement will commence on the Service Start Date and will continue for the period of time set forth in the Order Form, or if no such period is set forth, then a period of one year (the “Initial Term”); but if the last day of the Initial Term is not the last day of a calendar month, then the Initial Term will be extended by up to 30 additional days such that the Initial Term ends on the last day of a calendar month. Thereafter, the Agreement will automatically renew for additional consecutive 12 month terms (each, a “Renewal Term”) pursuant to the terms herein until either party gives notice at least 30 days before the end of the then-current Initial Term or Renewal Term that such party does not wish to renew the Agreement, or unless the Agreement is earlier terminated as provided in Sections 9.2 or 9.3 (the Initial Term and all Renewal Terms collectively, the “Term”).
9.2 Termination for Breach or Bankruptcy. Either party may terminate the Agreement immediately upon notice to the other party if such other party: (i) materially breaches the Agreement and fails to cure such breach within 30 days after receiving notice thereof; (ii) files for any form of bankruptcy or protection from creditors, becomes insolvent or otherwise unable to pay bills when due, makes an assignment for the benefit of creditors, or has a bankruptcy trustee, receiver, or similar official appointed to manage such other party’s assets; or (iii) is the subject of a bankruptcy petition filed by a third party, which petition is not dismissed in such other party’s favor within 60 days after the filing thereof. Notwithstanding the above, Thorn may terminate the Agreement immediately without notice if Thorn has reasonable basis to believe that Company has violated the provision of Section 3 (Software License; License Restrictions), Section 5 (Confidentiality) or Section 10.8 (Publicity). In the event of such termination, Company will immediately cease use of the Software and any Service and any amounts owed by Company under the Agreement will become immediately due in full and any amounts paid for the Term will be forfeited. Without limiting the foregoing, Company will pay all reasonable attorneys’ fees and other costs incurred by Thorn arising from any breach of Section 3, 5, and 10.8.
9.3 Survival. The following provisions will survive any termination of the Agreement: (i) any obligation of either party accrued prior to the date of such termination to pay money to the other party; and (ii) Sections 3, 5, and 6 through 10.
10 GENERAL PROVISIONS
10.1 Assignment. Company may not assign the Agreement without the prior written consent of Thorn, except that Company may assign the Agreement in its entirety to Company’s successor in interest in connection with a merger, acquisition, restructuring, or change of control of Company, or to a purchaser of substantially all of the Company’s assets to which the Agreement pertains, upon notice to Thorn. Thorn may assign the Agreement without notice to or consent of Company. Any assignment in violation of this section is void.
10.2 Governing Law. The Agreement is governed in accordance with the laws of the State of California, without regard to conflict of law principles. All actions brought in connection with the Agreement will be brought exclusively in the state and federal courts located in Los Angeles County, California, and the parties hereby consent to personal jurisdiction in such courts and waive all motions and claims regarding inconvenient forum or venue in such courts.
10.3 Relationship Between the Parties. The relationship between the parties is that of independent contractors. Nothing in the Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
10.4 Third Party Beneficiaries. There are no third party beneficiaries to the Agreement, and nothing in the Agreement provides or is intended to provide any right or remedy to any person other than Thorn and Company.
10.5 Entire Agreement; Severability; Modification; Waiver. The Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior written and oral agreements between the parties to the extent related to the subject matter hereof. If any provision of the Agreement, or portion thereof, is found to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible and the remainder of the Agreement will continue in full force and effect. Except as expressly set forth in the Agreement, no modification of or amendment to the Agreement will be effective unless in writing signed by both parties; nor will any waiver of any provision of the Agreement be effective unless in writing and signed by the party against whom such waiver is asserted.
10.6 Notice. Any notice required or expressly permitted under the Agreement will be in writing and will be deemed given: (i) when personally delivered; (ii) two days after being sent via overnight delivery through a nationally recognized courier service with delivery confirmation and all fees prepaid; (iii) five days after being mailed to the party by U.S. certified mail; or (iv) upon acknowledgement of receipt after being sent in an email with a subject header that begins with the capitalized words LEGAL NOTICE, in each case, to receiving party at the address specified for such party in the Order Form or such other address as such party specifies by notice. Thorn’s address for notice by email is email@example.com.
10.7 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation acts of war, pandemic, acts of terror, natural disasters, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of infrastructure including electrical systems, communication systems, and the internet.
10.8 Non-Disclosure/Publicity. Neither party will, without the other party’s prior written consent, publicly use the other party’s name or logo for any purpose, whether marketing, promotional or otherwise, expect that Thorn may include Company’s name and logo on lists of customers who use the Service.
10.9 Prevailing Party. In the event of any dispute between the parties arising out of or in connection with the Agreement, the prevailing party shall be entitled to recover its costs incurred in connection therewith from the non-prevailing party, including reasonable attorneys' fees.
10.10 Counterparts. The Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will be deemed one instrument.