Jun 13 2024

Terms and Conditions

Effective: June 13, 2024

These Safer Thorn-Hosted Products & Services Terms and Conditions (“Terms and Conditions”) govern the provision and use of Safer Thorn-Hosted products and services by Company, and when taken together with an executed Order Form referencing these Terms and Conditions (each, an “Order Form”) constitute a legally-binding agreement between Thorn and Company (the “Agreement”).

1. DEFINITIONS

1.1  “Company Clients” means clients of Company on whose behalf Company is authorized by Thorn in an Order Form to use the Services according to the Agreement.

1.2. “Company Content” means content contained on Company or Company Client platforms, which is submitted by Company, on its own behalf or on behalf of Company Clients, to the Services in order to generate Results.

1.3  “Company Data” means Hashes, Features or Results generated from submissions of Company Content into the Services, if coupled with Company’s identification.

1.4  “CSAM” means child sexual abuse material, including materials that involve sexual trafficking, exploitation, endangerment or abuse of children.

1.5  “Documentation” means Thorn’s user manuals, handbooks, and guides relating to the Services provided by Thorn to Company either electronically or in physical form.

1.6  “Evaluation Services” means services offered by Thorn to Company either: (i) without payment by Company of any Fees; or (ii) for evaluation of Thorn’s Services, and identified as a Beta or Trial execution on an Order Form.

1.7  “Feature” means identifying or descriptive information algorithmically generated from an item of digital imagery or a video, where such information does not include such digital imagery/video or sufficient information to recreate such digital imagery/video.

1.8  “Hash” or “Hashing” means a numeric identifier that is algorithmically generated from an item of digital imagery or video.

1.9  “Match” or “Matching” means comparing Hashes generated from Company Content against Hash sets of known or suspected CSAM, and returning Results. 

1.10 “Metrics” means usage, performance and detection statistics produced in connection with Company’s use of the Services, and either submitted by Company to Thorn or captured automatically by the Services.

1.11 “Mission” means the detection, removal and reporting of CSAM from online platforms and services.

1.12 “Professional Services” means bespoke services performed by Thorn as identified in an Order Form, which are subject to supplemental terms and conditions.

1.13 “Results” means the information returned by the Services specific to whether Company Content submitted by Company into the Services may be known or suspected CSAM.

1.14 “Services” means collectively, the products and services provided by Thorn to Company pursuant to an Order Form, as well as all Documentation, including without limitation, any Evaluation Services and any Professional Services.

1.15 “Term” has the meaning set forth in Section 8.

2. ACCESS TO AND USE OF THE SERVICES

2.1 Access by Company; Thorn Intellectual Property.  Subject to the provisions of the Agreement, Thorn grants Company a non-exclusive, non-transferable (except as set forth in Section 9.1), non-sublicensable, fully-paid, royalty-free, revocable, right to access and use the Services during the Term, only: (i) internally, on Company-owned or licensed systems; (ii) in compliance with the Agreement; and (iii) to input Company Content into the Services and receive Results for the purpose of identifying, preventing, removing, and/or reporting CSAM-related content from Company’s and Company Clients’ online platforms and services. Except as set forth in this Section 2.1, Company acknowledges that, as between Thorn and Company, Thorn owns all right, title and interest, including all intellectual property rights, in and to the Services and all components thereof.

2.2 Usage Restrictions.  Company will not, and will not encourage or assist any third party to: (i) distribute, sell, lease, license, or sublicense the Services; (ii) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any other person, or that violates any applicable law; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any component of the Services, in whole or in part, including without limitation the source code or algorithms contained in the Services; (iv) copy, modify, or create derivative works of the Services, in whole or in part; (v) remove any copyright or other proprietary trademark from the Services; or (vi) combine or incorporate the Services with or into 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) otherwise redistributable. Services are provided only to Company and not to Company Clients. 

2.3 Company Responsibilities.  Thorn will provide to Company any necessary credentials to allow Company to access and use the Services during the Term. Company is solely responsible and liable for all uses of the Services resulting from access provided by Company, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. In addition, Company acknowledges and agrees that it remains solely responsible for compliance with any legal and regulatory requirements it may have with respect to the Company Content and Results. Company will not intentionally introduce any virus, trojan horse, worm, logic bomb, backdoor, code or material which is malicious or technologically harmful to any Thorn Services, computer, systems, or software (collectively, a “Virus”).  

2.4 Feedback License.  Company may provide bug reports, feature ideas, results, or other feedback (“Feedback”) to Thorn regarding the operation, content, design, interfaces, performance, or other features and functionality of the Services, or Company’s use thereof. Thorn may use such Feedback without restriction, and Company hereby grants Thorn a non-exclusive, non-transferable (except as set forth in Section 9.1), perpetual, irrevocable, fully-paid, royalty-free, worldwide license to use such Feedback for any purpose, except Thorn may not publicly disclose Company as the source of such Feedback.

2.5 Company Intellectual Property.  Company represents and warrants to Thorn that it has all necessary authorizations and consents to use the Services and to process the Company Content through the Services according to the Agreement. Company hereby grants to Thorn a non-exclusive, royalty-free, worldwide license to reproduce, use and display, and otherwise perform all acts with respect to the Company Content as may be necessary for Thorn to provide the Services to Company, and to use the Company Content as expressly permitted under the Agreement.

2.6 Company Clients.  If an Order Form authorizes Company to use the Services on behalf of a Company Client(s), then Company: (i) will provide the name and URL of each Company Client to Thorn no later than 30 days after use of any Services on behalf of such Company Client to AccountManagement@wearethorn.org; (ii) may report back to the respective Company Clients the Results; and (iii) in addition to and not in limitation of Section 7.2, and subject to Section 7.3, will defend, indemnify and hold Thorn harmless against any and all Damages arising from any Claim (as such terms are defined in Section 7) brought by, on behalf of or in connection with any Company Clients and based on or related to the Services provided or any rights exerted by Thorn under the Agreement.

2.7 Reservation of Rights. Except for the rights expressly set forth in the Agreement, Thorn does not grant any other rights to Company, whether by implication, estoppel, or otherwise.

3. FEES AND PAYMENT; TAXES 

3.1 Fees and Payment.  Company will pay Thorn the fees, costs and/or expenses set forth in the Order Form (“Fees”) without offset or deduction. Thorn will invoice Company for the Fees, and Company will pay each invoice in accordance with the payment terms set forth in the Order Form.  

3.2 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 or receipt of the Services, 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.

4. CONFIDENTIALITY

4.1 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 existence and 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 features, functionality, components, results and performance of the Services; and (ii) with respect to Company, the Company Content, the Company Data and the identity of Company Clients. 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.

4.2 Maintenance of Confidentiality.  Except as expressly set forth in the Agreement, or except with the prior written permission of Discloser, Recipient will not: (i) use the other party’s Confidential Information for any purpose except in connection with its rights and obligations under the Agreement; or (ii) disclose the other party’s Confidential Information to any third party. 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, 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 (assuming Recipient is legally permitted to provide such notice); 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 it is legally required to disclose and will use reasonable efforts to ensure that the Confidential Information disclosed will be accorded confidential treatment.

4.3 Use and Disclosure of Company Data and Metrics.  In addition, and not in limitation of this Section 4, Thorn may use and disclose Company Data internally to: (i) improve the Services; and (ii) further the Mission. Thorn may also collect and use Metrics internally to improve the Services, as well as disclose Metrics externally to third parties if: (a) such data is anonymized and aggregated with the data of at least three other users of the Services; and (b) in furtherance of the Mission.

5. DISCLAIMERS

5.1 Disclaimer Regarding Results.  (i) Services that involve creating Hash sets to Match against known CSAM. Thorn obtains CSAM Hash sets against which Company Content is compared to determine whether there is a Match from various sources, which may be used to generate Results provided to Company hereunder. Thorn does not corroborate or confirm that any such CSAM Hash sets or Results are correct. Further, it is mathematically possible for two different digital images to produce similar Hash or other Features, which can theoretically lead to incorrect Results. (ii) Services that involve detecting for suspected CSAM rely on a mathematical prediction score to determine whether Company Content does or does not contain CSAM.  Thorn does not corroborate or confirm that any such Results are correct. COMPANY ACKNOWLEDGES THAT RESULTS OBTAINED THROUGH THE SERVICES MAY NOT BE COMPLETE, RELIABLE, OR TRUE, AND THAT THE SERVICES ARE INTENDED ONLY AS INITIAL SCREENING TOOLS TO TRIGGER APPROPRIATE FURTHER REVIEW AND/OR MEASURES IN ACCORDANCE WITH APPLICABLE LAW AND COMPANY’S POLICIES.

5.2 Disclaimer Regarding the Services. The Services are provided “as is”, with all faults, and without any warranty of any kind, including as to accuracy or completeness. Company is solely responsible for its use of the Services, including all Results, and any other information generated by the Services 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 SERVICES WILL MEET COMPANY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ARE ACCURATE, ERROR-FREE, SUITABLE FOR ANY PARTICULAR PURPOSE, OR THAT ANY FLAWS WILL BE CORRECTED.

6. LIMITATIONS OF LIABILITY

6.1 Limitation on Type of Damages.  EXCLUDING DAMAGES THAT RESULT FROM: A PARTY’S BREACH OF USE AND LICENSING RESTRICTIONS UNDER SECTION 2, ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4, OR ITS NON-DISCLOSURE/PUBLICITY OBLIGATIONS UNDER SECTION 9.8; A PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 7; OR COMPANY’S INTRODUCTION OF A VIRUS (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. BUT, WITH RESPECT TO DAMAGES ARISING IN CONNECTION WITH PROVISION OF EVALUATION SERVICES, IN NO EVENT WILL THORN BE LIABLE TO COMPANY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORY OF LIABILITY, EVEN IF THORN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

6.2 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. BUT, WITH RESPECT TO DAMAGES ARISING IN CONNECTION WITH A CLAIM RELATED TO PROVISION OF EVALUATION SERVICES, UNDER NO CIRCUMSTANCES WILL THORN’S AGGREGATE LIABILITY TO COMPANY ARISING UNDER THE AGREEMENT EXCEED $1,000.

6.3 Application.  But for the provisions of Sections 5 and 6 the Services 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 5 or 6 purports to waive any liability that cannot be waived by applicable law.

7. INDEMNITY

7.1 Thorn Indemnity.  Subject to Section 7.3, 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”), arising from any third-party claim, suit, action or proceeding (“Claim”), to the extent the Services, when used in the manner authorized by the Agreement, infringe or misappropriate any intellectual property right of such third party. This Section 7.1 will not apply: (i) to Evaluation Services or Professional Services; (ii) if the alleged infringement or misappropriation arises from: (a) use of the Services in connection or combination with Company Content or with data, software, hardware, equipment, or technology not provided by Thorn; (b) modifications to the Services made by Company or at Company’s behest; or (c) any Services modified by Thorn as part of Professional Services rendered under the Agreement (collectively, the “Company Use Claims”).

7.2 Company Indemnity.  Subject to Section 7.3, Company will defend, indemnify, and hold Thorn harmless against any and all Damages, arising from any third-party Claim based on: (i) Company’s negligence, willful misconduct, breach of the Agreement, or violation of law; or (ii) the Company Use Claims.

7.3 Procedure. Either party that is indemnified under this Section 7 (“Indemnitee”) will give to the other party (“Indemnifying Party”): (i) prompt written notice of any Claim for which indemnification may be sought, but any failure to notify will not relieve the Indemnifying Party from any liability or obligation it may have under this Section, except to the extent of any material prejudice to the Indemnifying Party resulting from such failure; (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.

7.4 Sole Remedy. THIS SECTION 7 SETS FORTH COMPANY’S SOLE REMEDIES AND THORN’S SOLE LIABILITY AND OBLIGATIONS FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.

8. TERM, TERMINATION & SUSPENSION

8.1 Term. 

(i) For Evaluation Services: The “Term” of the Agreement will commence on the Effective Date of the Order Form and will continue for the period of time set forth in the Order Form. But, Thorn may change or discontinue any Evaluation Services provided to Company at any time without prior notice. Company’s access to and use of the Services after the end of the Term is subject to the parties executing a separate Order Form. 

(ii) For Professional Services: The “Term” of the Agreement will commence on the Effective Date of the Order Form and will continue until: (a) completion of the Professional Services; (b) termination by either party upon giving the other party 30 days’ prior written notice; or (c) termination as provided in Section 8.2.

(iii) For all other Services: The “Term” of the Agreement will commence on the Effective Date of the Order Form and will continue in effect until: (a) the Agreement is terminated pursuant to Section 8.2; (b) the Agreement is terminated in a writing signed by both parties; or (c) there are no Order Forms in effect referencing these Terms and Conditions.   

8.2 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 provisions of Section 2, 4 or 9.8. 

8.3 Effect of Termination.  Upon termination of the Agreement: (i) Company will immediately cease use of the Services and promptly provide Thorn with written confirmation (which may be via email) of compliance with this subsection (i); and (ii) 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 2, 4 or 9.8.

8.4 Suspension.  Thorn may suspend access to the Services at any time on notice (which may be via email or telephone) as soon as practicable after the fact, if Thorn reasonably believes, in its sole discretion, that the security, integrity, or performance of the Services, or if  Company fails to make timely payment of any Fees when due.

8.5 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 2, and 4 through 9.

9. GENERAL PROVISIONS  

9.1 Assignment.  Neither party may assign the Agreement without the prior written consent of the other party, except that a party may assign the Agreement in its entirety to its successor in interest in connection with a merger, acquisition, restructuring or a change of control over such party, or to a purchaser of substantially all of its assets to which the Agreement pertains, upon notice to the other party. Any assignment in violation of this Section is void.

9.2 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.

9.3 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.

9.4 Third Party Beneficiaries.  There are no third party beneficiaries to the Agreement, including without limitation Company Clients, and nothing in the Agreement provides or is intended to provide any right or remedy to any person other than Thorn and Company.

9.5 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.

9.6 Notice.  Unless expressly stated otherwise in the Agreement, 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 legal@wearethorn.org.

9.7 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.

9.8 Non-Disclosure/Publicity.  Notwithstanding anything contained in the Agreement to the contrary, Company may disclose Thorn’s name, and Thorn may disclose Company’s name, in verbal discussions solely to identify Company’s use of the Services. Such disclosure by Company may not include information pertaining to the operation, content, design, interfaces, performance, or other features and functionality of the Services, which are proprietary and confidential to Thorn, and such disclosure by Thorn may not identify Company together with specific performance or Results related to Company’s use of the Services. Neither party will, without the other party’s prior written consent, publicly use the other party’s name or logo in any written materials, for any purpose, whether marketing, promotional or otherwise, and regardless of its distribution method, except that Thorn may include Company’s name and logo on lists of customers who use Thorn’s Services.

9.9 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.

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